Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions: (a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense. (b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof. (c) Anything in this Section 6.03 to the contrary notwithstanding, the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld. (d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 8 contracts
Sources: Asset Purchase Agreement (Mac Filmworks Inc), Asset Purchase Agreement (Mac Filmworks Inc), Asset Purchase Agreement (Mac Filmworks Inc)
Conditions of Indemnification. The Company shall indemnify and hold harmless the Advisor and its Affiliates, including their respective obligations officers, directors, partners and liabilities employees, from all liability, claims, damages or losses arising in the performance of Seller their duties hereunder, and Purchaser (the "indemnifying party") related expenses, including reasonable attorneys’ fees, to the other (the "party to be indemnified") under Sections 6.01 extent such liability, claims, damages or losses and 6.02 hereof with respect to claims resulting from the assertion of liability related expenses are not fully reimbursed by third parties shall be insurance, subject to any limitations imposed by the laws of the State of Maryland and only if all of the following terms and conditionsconditions are met:
(a) Within 20 days (The directors or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process Advisor or other legal pleadingits Affiliates have determined, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, howevergood faith, that the party to be indemnified may participate course of conduct that caused the loss or liability was in the defense with counsel best interests of its own choice and at its own expense.the Company;
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer The Advisor or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim its Affiliates were acting on behalf of and or performing services for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.Company;
(c) Anything in this Section 6.03 to Such liability or loss was not the contrary notwithstanding, result of negligence or misconduct by the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.Advisor or its Affiliates; and
(d) The party Such indemnification or agreement to be indemnified hold harmless is recoverable only out of the Company’s Net Asset Value and not from its Stockholders.
(e) With respect to losses, liabilities or expenses arising from or out of an alleged violation of federal or state securities laws, one or more of the following conditions are met: (i) there has been a successful adjudication on the merits of each count involving alleged securities law violations as to the particular indemnitee; (ii) such claims have been dismissed with prejudice on the merits by a court of competent jurisdiction as to the particular indemnitee; or (iii) a court of competent jurisdiction approves a settlement of the claims against a particular indemnitee and finds that indemnification of the settlement and the indemnifying party will each cooperate with all reasonable requests related costs should be made, and the court considering the request for indemnification has been advised of the otherposition of the SEC and of the published position of any state securities regulatory authority in which securities of the Company were offered or sold as to indemnification for violations of securities laws. Notwithstanding the foregoing, the Advisor shall not be entitled to indemnification or be held harmless pursuant to this Article XVIII for any activity which the Advisor shall be required to indemnify or hold harmless the Company pursuant to Article XIX. Any indemnification of the Advisor may be made only out of the net assets of the Company, including insurance proceeds, and not from Stockholders.
Appears in 6 contracts
Sources: Advisory Agreement (Strategic Storage Trust, Inc.), Advisory Agreement (Strategic Storage Trust, Inc.), Advisory Agreement (Strategic Storage Trust, Inc.)
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days A party entitled to indemnification hereunder (the “Indemnified Party”) shall notify the party or parties liable for such earlier time as might be required to avoid prejudicing indemnification (the indemnifying party's position including the entry of a default judgment“Indemnified Party”) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by Claim or potential liability for Taxes (“Tax Claim”) which the Indemnified Party has determined has given or could give rise to a third party, right of indemnification under this Agreement. Such notice shall be given within a reasonable (taking into account the party to be indemnified nature of the Claim or Tax Claim) period of time after the Indemnified Party has actual knowledge thereof. The Indemnifying Party shall give the indemnifying party satisfy its obligations under this Article 8 within forty days after receipt of subsequent written notice thereof together with a copy from the Indemnified Party if an amount is specified therein, or promptly following receipt of subsequent written notice or notices specifying the amount of such claim, process Claim or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expenseTax Claim additions thereto; provided, however, that for so long as the party Indemnifying Party is in good faith defending a Claim or Tax Claim pursuant to Section 8.3(b) hereof, its obligation to indemnify the Indemnified Party with respect thereto shall be indemnified may participate in suspended (other than with respect to any costs, expenses or other liabilities incurred by the Indemnified Party prior to the assumption of the defense with counsel by the Indemnifying Party). Failure to provide a notice of its own choice and at its own expenseClaim or Tax Claim within the time period referred to above shall not constitute a defense to a Claim or Tax Claim or release the Indemnifying Party from any obligation hereunder to the extent that such failure does not prejudice the position of the Indemnifying Party.
(b) In If the facts giving rise to any such indemnification involve any actual, threatened or possible Claim or demand or Tax Claim by any person not a party to this Agreement against the Indemnified Party, the Indemnifying Party shall be entitled to contest or defend such Claim or demand Tax Claim at its expense and through counsel of its own choosing, which counsel shall be reasonably acceptable to the Indemnified Party, such right to contest or defend shall only apply if the Indemnifying Party gave written notice of its intention to assume the contest and defense of such Claim or demand Tax Claim to the Indemnified Party as soon as practicable, but in no event that the indemnifying party, by the 30th day more than thirty days after receipt of the notice of Claims or Tax Claim, and provided the Indemnified Party with appropriate assurances as to the creditworthiness of the Indemnifying Party, and that the Indemnifying Party will be in a position to pay all fees, expenses and judgments that might arise out of such Claim or demand Tax Claim. The Indemnified Party shall have the obligation to cooperate in the defense of any such claim (orClaim or demand Tax Claim and the right, if earlierat its own expense, to participate in the defense of any Claim or Tax Claim. So long as the Indemnifying Party is defending in good faith any such Claim or demand Tax Claim asserted by a third party against the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claimIndemnified Party, the party to be indemnified will (upon further notice to the indemnifying party) Indemnified Party shall not settle or compromise such Claim or demand Tax Claim. The Indemnifying Party shall have the right to undertake the defense, settle or compromise any such Claim or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to the contrary notwithstanding, the indemnifying party shall not settle any claim demand Tax Claim without the consent of the party Indemnified Party at any time utilizing its own funds to be indemnified unless do so if in connection with such settlement involves only or compromise the payment of money Indemnified Party is fully released by the third party and the claimant provides is paid in full any indemnification amounts due hereunder. The Indemnified Party shall make available to the Indemnifying Party or its agents all records and other materials in the Indemnified Party’s possession reasonably required by it for its use in contesting any third party to be indemnified a release from all liability in respect of such claim. If Claim or demand Tax Claim and shall otherwise cooperate, at the settlement expense of the claim involves more than Indemnifying Party, in the payment of moneydefense thereof in such manner as the Indemnifying Party may reasonably request. Whether or not the Indemnifying Party elects to defend such Claim or demand Tax Claim, the indemnifying party Indemnified Party shall not settle the claim without the prior consent of the party have no obligation to be indemnified, which consent shall not be unreasonably withhelddo so.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 5 contracts
Sources: Securities Exchange Agreement (Beta Music Group, Inc.), Securities Exchange Agreement (Beta Music Group, Inc.), Securities Exchange Agreement (Beta Music Group, Inc.)
Conditions of Indemnification. The respective obligations of Novartis and liabilities of Seller and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") Reliant under Sections 6.01 and 6.02 hereof with respect to claims resulting from the assertion of liability by third parties this Article X shall be subject to the following terms and conditions:
(a) Within 20 The party claiming a right to indemnification shall, within ten (10) business days (of receipt of any claim, charge, suit or such earlier time as might be required other action, give, in accordance with Article XII, written notice to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement , of any action evidenced by service of process such claim, charge, suit or other legal pleadingaction received from a third party which is governed by the indemnity obligations of this Agreement;
(b) The indemnifying party shall conduct, or at its own expense, but in consultation with reasonable promptness after the assertion in writing other party, the defense of any claim and all such claims, charges, suits or other actions by a third party;
(c) Neither party shall settle or admit liability with respect to any such claims, charges, suits or other actions which could result in liability to the other party without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed;
(d) If the indemnifying party does not take the steps necessary against any such claims, charges, suits or other action by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of claiming indemnification may defend against or settle such claimclaims, process charges, suits or other legal pleadingaction provided that that party may not settle such claims, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; providedcharges, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer suits or other pleading must be served in order to prevent judgment by default in favor of action without the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk prior written consent of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to the contrary notwithstanding, the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.
(dwithheld or delayed; however, the defense and/or settlement under this Article 10.3(d) The shall not act as a waiver of rights to indemnification under this Agreement, or any other rights or remedies of a party to be indemnified claiming indemnification and shall not excuse the indemnifying party will each cooperate with from its obligations hereunder and all reasonable requests costs and expenses incurred by the party claiming indemnification shall be subject to indemnity by the indemnifying party; and
(e) Each party will offer reasonable assistance to the other party in defending or settling the claim, at the expense of the otherindemnifying party.
Appears in 5 contracts
Sources: Promotion Agreement (Reliant Pharmaceuticals, Inc.), Promotion Agreement (Reliant Pharmaceuticals, Inc.), Promotion Agreement (Reliant Pharmaceuticals, Inc.)
Conditions of Indemnification. The respective Parties’ indemnification obligations and liabilities of Seller and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof with respect to claims resulting from the assertion of liability by third parties shall be this Section 17 are subject to the following terms and conditions:
Party seeking indemnification (ai) Within 20 days (or such earlier time as might be required to avoid prejudicing notifying the other, indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion Party promptly in writing of any claim by an Illumina Infringement Claim or Third Party Claim, as the case may be, (provided that a third party, delay in providing shall not relieve the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives Party of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice indemnification obligations except to the extent it is prejudiced by such delay) (ii) giving indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of Party exclusive control and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume authority over the defense of such claims at Claim, (iii) not admitting infringement of any time Intellectual Property Right without prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to the contrary notwithstanding, the indemnifying party shall not settle any claim without the written consent of the party indemnifying Party, (iv) not entering into any settlement or compromise of any such action without the indemnifying Party’s prior written consent not to be indemnified unless such settlement involves only the payment of money unreasonably withheld, conditioned, or delayed, and the claimant provides (v) providing all reasonable assistance to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, indemnifying Party that the indemnifying party shall Party requests and ensuring that its officers, directors, representatives and employees and other indemnitees likewise provide assistance (provided that indemnifying Party reimburses the indemnified Party(ies) for its/their reasonable out-of-pocket expenses incurred in providing such assistance). An indemnifying Party will not enter into or otherwise consent to an adverse judgment or order, or make any admission as to liability or fault that would adversely affect the indemnified Party, or settle the claim a dispute without the prior written consent of the party to be indemnifiedindemnified Party, which consent shall not to be unreasonably withheld, conditioned, or delayed.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 5 contracts
Sources: Supply, Service, and Support Agreement, Supply, Service, and Support Agreement (Foundation Medicine, Inc.), Supply, Service, and Support Agreement (Foundation Medicine, Inc.)
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser PQS, Probex or Parent, as the case may be (the "indemnifying partyParty") to the other Persons (the "party Party to be indemnified") under Sections 6.01 and 6.02 hereof with respect to claims resulting from the assertion of liability by third parties any claim or demand for indemnification shall be subject to the following terms and conditions:
13.3.1 The Party to be indemnified shall promptly give notice to the indemnifying Party of any claim, whether between the Parties or brought by a third party, specifying both the basis for and the amount of such claim, to the extent specified or otherwise known. If the claim or demand for indemnification relates to a claim, action, suit, or proceeding asserted or filed by a Third Party against the Party to be indemnified (aa "Third-Party Claim"), then such notice shall be given by the Party to be indemnified within twenty (20) Within 20 days of receipt thereof (or such earlier time as might be required to avoid prejudicing the indemnifying partyParty's position including position). The failure of the entry Party to be indemnified to give such notice shall not relieve the indemnifying Party of its obligations hereunder, except to the extent the indemnifying Party is actually prejudiced thereby.
13.3.2 Following receipt of notice from the Party to be indemnified of a default judgmentclaim or demand for indemnification, the indemnifying Party shall have twenty (20) after days to make such investigation of the claim or demand as the indemnifying Party deems necessary or desirable. For the purposes of such investigation, the Party to be indemnified agrees to make available to the indemnifying Party (or its authorized representatives) the information relied upon by the Party to be indemnified to substantiate the claim or demand. If the Party to be indemnified and the indemnifying Party agree at or before the expiration of such twenty (20) day period (or any mutually agreed upon extension thereof) to the validity and amount of such claim or demand, then the indemnifying Party shall immediately pay to the Party to be indemnified the full amount of the claim or demand to the extent that such Party to be indemnified is entitled to indemnification pursuant to this Section 13.3. If the Party to be indemnified and the indemnifying Party do not agree within such period (or any mutually agreed upon extension thereof), then the Party to be indemnified may pursue or exercise any remedies or rights available to it.
13.3.3 After receipt of notice of commencement of any action Third-Party Claim evidenced by service of process or other legal pleading, or with reasonable promptness after the any other assertion in writing of any claim by a third partyThird-Party Claim, the party Party to be indemnified shall give the indemnifying party Party written notice thereof together with a copy of such claim, process process, or other legal pleading, and pleading within the period set forth in the second sentence of Section 13.3.1. The failure of a Party to be indemnified to give the indemnifying party Party such notice shall not relieve the indemnifying Party of its obligations under Section 13.3 except to the extent the indemnifying Party is actually prejudiced thereby. The indemnifying Party shall have the right to undertake the defense thereof defense, compromise, or settlement of the Third-Party Claim, by representatives of its own choosing and at its own expense; providedexpense so long as the indemnifying Party agrees to assume and conduct, howeverand diligently conducts, that such defense (or, if applicable, compromise or settlement). In such event the party Party to be indemnified may participate in the defense defense, compromise, or settlement with counsel of its own choice and at its own expense.
(b) In the event that 13.3.4 If the indemnifying partyParty, by the 30th thirtieth (30th) day after receipt of notice of any such claim (or, if earlier, by the 10th tenth (10th) day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claimplaintiff), does not elect to defend against such claimThird-Party Claim, then the party Party to be indemnified will shall have the right (upon further notice to the indemnifying partyParty) have the right to retain counsel and undertake the defense, compromise compromise, or settlement of such claim Third-Party Claim on behalf of of, and for the account and risk of of, the indemnifying party Party and at the indemnifying partyParty's expense, subject to the right of the indemnifying party Party to assume participate, with its own counsel and at its own expense, in the defense defense, settlement or compromise. If the Party to be indemnified and the indemnifying Party agree at or before the expiration of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything the period set forth in this Section 6.03 13.3.4 (or any mutually agreed upon extension thereof) to the contrary notwithstandingvalidity and amount of such Third-Party Claim, then the indemnifying Party shall immediately pay to the Party to be indemnified the amount so agreed.
13.3.5 If there is a conflict of interests which renders it inappropriate for the same counsel to represent both the indemnifying Party and the Party to be indemnified in defending, compromising, or settling a Third-Party Claim, the indemnifying party Party shall be responsible for paying for separate counsel for the Party to be indemnified. In such event, however, if there is more than one Party to be indemnified, the indemnifying Party shall not settle be responsible for paying for more than one separate counsel (which may be a firm of attorneys) to represent the Parties to be indemnified, regardless of the number of Parties to be indemnified.
13.3.6 The indemnifying Party may compromise, settle, or resolve any claim Third-Party Claim without the consent of the party Party to be indemnified unless if such settlement compromise, settlement, or resolution involves only the payment of money by the indemnifying Party (whether on its own behalf or on behalf of the Party to be indemnified) and the claimant provides to the party Party to be indemnified a release from all liability Liability in respect of such claim. If the settlement of the claim involves more than the payment of moneyOtherwise, the indemnifying party shall Party may not settle compromise, settle, or resolve the claim without the prior written consent of the party Party to be indemnified, which consent shall may not be unreasonably withheld.
(d) 13.3.7 The party Party to be indemnified and the indemnifying party will each Party must cooperate with all reasonable requests of the other in the defense of any Third-Party Claim.
13.3.8 Notwithstanding anything to the contrary in this Section 13.3, with respect to an obligation of PQS to indemnify Probex pursuant to Section 13.2.1 above with respect to a PQS Environmental Claim that requires any Remediation, PQS may elect to implement and complete such Remediation. If PQS elects to conduct the Remediation:
(i) PQS, in good faith, will coordinate the schedule of the Remediation with Probex so that disruptions of Probex's operations will be minimized;
(ii) PQS will obtain the prior written approval of Probex, which approval will not be unreasonably withheld, for any consultant or contractor retained by PQS to investigate, design or implement the Remediation;
(iii) PQS will conduct the Remediation in compliance with all applicable federal, state and local laws and regulations and as directed by the appropriate Governmental Body; and
(iv) PQS will not agree to or select any Remediation that imposes any material obligation on Probex, including, without limitation, the obligation to sign manifests or obtain permits, without the prior written consent of the Probex, which consent shall not be reasonably withheld.
(v) During the period in which PQS is conducting a Remediation pursuant to this Section 13.3.8, Probex shall provide PQS and its consultants and contractors reasonable access to the affected property for the purpose of conducting activities related to the Remediation, including where necessary the use of heavy equipment. Any such access shall be subject to reasonable restrictions imposed by Probex, including, without limitation, restrictions related to worker safety. PQS shall expeditiously remove from the property all drill cuttings, soil, debris or liquids generated from or in connection with the Remediation and shall restore the property and any existing structures or equipment removed or damaged in the course of the Remediation to a condition substantially the same as the condition that existed immediately prior to the Remediation. PQS or their consultants and contractors shall provide Probex at least five (5) business days' notice of the activities to be conducted on the property, which notice may be in the form of a schedule of activities.
(vi) PQS and Probex agree that any Remediation shall meet all requirements of the Governmental Body or Bodies directing the Remediation and shall not materially impede or increase the cost of Probex's business operations on the affected property. Probex acknowledges that the Remediation may be a "risk-based" Remediation pursuant to, and consistent with applicable federal, state and local laws and regulations, which may require the establishment of certain restrictions or conditions affecting the property on which the Remediation is being conducted. Probex agrees not to object to any such "risk-based" Remediation unless Probex's agreement will, in the good faith judgment of Probex, expose Probex to liability to third parties.
(vii) PQS shall not take any action or make any communication which has a material effect on the resolution or outcome of any Environmental Claim which could lead to the filing of an Environmental Claim against Probex, without providing at least five (5) business days advance notice (unless otherwise required by law) to Probex. Any material breach of this obligation shall relieve Probex or Parent of Liabilities under this Agreement with respect to the applicable Environmental Claim to the extent Probex or Parent has been prejudiced by the lack of timely and adequate notice. This notification requirement shall not apply to communications which are part of or relate to a judicial or administrative proceeding in which the Parties are litigating claims against each other.
Appears in 4 contracts
Sources: Services Agreement (Probex Corp), Services Agreement (Probex Corp), Services Agreement (Probex Corp)
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (the "indemnifying party") Company to indemnify the other (the "party to be indemnified") Investor Group under Sections 6.01 and 6.02 Section 8.1 hereof with respect to claims Damage claims, resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the The indemnified party to be indemnified shall will give the indemnifying party written prompt notice thereof together with a copy of any such claim, process or other legal pleading, and the indemnifying party shall have the right to will undertake the defense thereof by representatives of its own choosing and at its own expensereasonably satisfactory to the indemnified party; provided, however, that failure to provide such notice will not relieve the indemnifying party to be indemnified may participate in the defense with counsel of its own choice obligations hereunder unless (and at its own expense.
(bthen solely to the extent) In the event that it is actually prejudiced by such failure to receive such notice. If the indemnifying party, by the 30th day within ten (10) days after receipt of notice of any such claim (orclaim, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect fails to defend against such claim, the indemnified party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(cb) Anything in this Section 6.03 8.3 to the contrary notwithstanding, (i) an indemnified party shall have the right, at its own cost and expense, to participate in the defense, compromise or settlement of such claim, (ii) the indemnifying party shall not settle any claim not, without the written consent of the party indemnified party, settle or compromise any claim or consent to be indemnified unless such settlement involves only the payment entry of money and any judgment (x) which does not include as an unconditional term thereof the giving by the claimant provides or the plaintiff to the indemnified party to be indemnified a release from all liability in respect of such claim. If claim or (y) as a result of which injunctive or other equitable relief would be imposed against the indemnified party, and (iii) the indemnified party shall have the right to control the defense or settlement of that portion of any claim which seeks an order, injunction or other equitable relief against the indemnified party which, if successful, could materially interfere with the business, operations, assets, financial condition or prospects of the indemnified party; provided, however, that in connection with the defense or settlement of the portion of such claim involves more than which seeks equitable relief, the payment of money, indemnified party shall cooperate with the indemnifying party shall not settle and use its reasonable best efforts to limit the claim without the prior consent liability of the party to be indemnified, which consent shall not be unreasonably withheld.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests for the damages portion of the othersuch claim.
Appears in 4 contracts
Sources: Preferred Membership Unit Purchase Agreement, Membership Unit Purchase Agreement (FVA Ventures, Inc.), Membership Unit Purchase Agreement (FVA Ventures, Inc.)
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (the "an indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof Section 7.2 with respect to claims resulting from Damages for which it must indemnify another party hereunder (collectively, the assertion of liability by third parties "Indemnified Claims") shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the The indemnified party to be indemnified shall give the indemnifying party written notice thereof together with of any such Indemnified Claim which notice shall set forth in reasonable detail the basis for and amount of the Indemnified Claim, and the circumstances giving rise thereto. If the Indemnified Claim is a third-party claim, the notice must contain a copy of such any papers served on the indemnified party.
(b) If the Indemnified Claim is not a third-party claim, process or other legal pleading, and unless within thirty (30) days of receipt by the indemnifying party of notice of the Indemnified Claim the indemnifying party sends written notice to the indemnified party disputing the facts giving rise to the Indemnified Claim or the amount of Damages stated in the notice, the Damages stated in the notice shall have become due and payable upon the right expiration of such thirty (30) day period. If, however, the indemnifying party disputes the facts, giving rise to the Indemnified Claim or the amount of Damages stated in the notice within such thirty (30) day period and the dispute cannot be resolved within the following ninety (90) days, the dispute shall be submitted to arbitration under the rules of the American Arbitration Association in Chicago, Illinois.
(c) If the Indemnified Claim is a third-party claim, the indemnifying party may undertake the defense thereof at its own expense by representatives of its own choosing reasonably satisfactory to the indemnified party and at its own expense; provided, however, that will consult with the indemnified party to be indemnified may participate in concerning such defense during the defense with counsel of its own choice and at its own expense.
(b) In the event that course thereof. If the indemnifying party, by the 30th day within thirty (30) days after receipt of notice of any Indemnified Claim (or such claim (orshorter period as is necessary to prevent prejudice to the indemnified party, if earlier, by such thirty (30) day period would prejudice the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor rights of the person asserting such claimindemnified party), does not elect fails to defend against such claimdefend, the indemnified party to be indemnified will (upon further notice to the indemnifying party) will have the right to undertake the defense, compromise or settlement of such claim Indemnified Claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right expense of the indemnifying party. In addition, if there is a reasonable probability that a third-party Indemnified Claim may materially and adversely affect an indemnified party, the indemnified party shall have the right, at its own cost and expense, to assume the defense of such claims at any time prior to settlementdefend, compromise or final determination thereofsettle such Indemnified Claim.
(cd) Anything in this Section 6.03 7.3 to the contrary notwithstanding, neither the indemnifying party shall not nor the indemnified party, as the case may be, may settle or compromise any claim Indemnified Claim or consent to entry of any judgment in respect thereof, without the written consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnifiedother, which consent shall not be unreasonably withheldwithheld or delayed.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 4 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Carrols Restaurant Group, Inc.), Asset Purchase Agreement (Carrols Restaurant Group, Inc.)
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (the "indemnifying party") Company to indemnify the other (the "party to be indemnified") Indemnified Parties under Sections 6.01 and 6.02 hereof Section 6.2 with respect to claims resulting from the assertion of liability Claims made by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified The Indemnified Party shall give the indemnifying party written Company prompt notice thereof together with a copy of any such claim, process or other legal pleadingClaim, and the indemnifying party Company shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.chosen by it;
(b) In If the event that the indemnifying partyCompany, by the 30th day within a reasonable time after receipt of notice of any such claim (orClaim, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect fails to defend any Indemnified Party against which such claimClaim has been asserted, the party to be indemnified will such Indemnified Party shall (upon further notice to the indemnifying partyCompany) have the right to undertake the defense, compromise or settlement of such claim Claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expenseCompany, subject to the right of the indemnifying party Company to assume the defense of such claims Claim at any time prior to settlement, compromise or final determination thereof.; and
(c) Anything in this Section 6.03 6.3 to the contrary notwithstanding, (i) if there is a reasonable probability that a Claim may materially and adversely affect an Indemnified Party other than as a result of money damages or other money payments, such Indemnified Party shall have the indemnifying party right, at its own cost and expense, to defend, compromise or settle such Claim; provided, however, that if such Claim is settled without the Company's consent (which consent shall not settle any claim be unreasonably withheld) such Indemnified Party shall be deemed to have waived all rights hereunder against the Company for money damages arising out of such Claim, and (ii) the Company shall not, without the written consent of such Indemnified Party, settle or compromise any Claim or consent to the party to be indemnified unless such settlement involves only entry of any judgment that does not include as an unconditional term thereof the payment of money and giving by the claimant provides or the plaintiff to the party to be indemnified such Indemnified Party a release from all liability in respect of to such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheldClaim.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 3 contracts
Sources: Stock Purchase Agreement (Ameritech Corp /De/), Stock Purchase Agreement (Microleague Multimedia Inc), Stock Purchase Agreement (Hearst Corp)
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (the "indemnifying party") Buyer with respect to the other (the "party its indemnities pursuant to be indemnified") under Sections 6.01 and 6.02 hereof with respect to claims this Article XIII, resulting from the any claim or other assertion of liability by third parties (hereinafter called collectively, "Third Party Claims"), shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of Seller must give Buyer written notice of commencement any such Claim within ninety (90) days after Seller receives notice thereof, but failure to give notice in such period shall only relieve Buyer of any action evidenced by service of process or other legal pleading, or with reasonable promptness after its indemnity obligations if and to the assertion in writing of any claim by a third party, extent the party to be indemnified shall give delay materially prejudices the indemnifying party written notice thereof together with a copy defense of such claim, process or other legal pleading, and the indemnifying party Claim.
(b) Buyer shall have the right to undertake the defense thereof promptly undertake, without conditions or reservation of rights, by counsel or other representatives of its own choosing and at its own expense; providedreasonably acceptable to Seller, however, that the party to be indemnified may participate in the defense with counsel of its own choice such Claim at Buyer's cost and at its own expenserisk.
(bc) In the event that the indemnifying partyBuyer shall elect not to undertake such defense, by the 30th day or within a reasonable time after receipt of notice of any such claim (orClaim from Seller shall fail to defend, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will Seller (upon further written notice to the indemnifying partyBuyer) shall have the right on behalf of and for the account and risk of Buyer to undertake the defense, compromise or settlement of such claim on behalf Claim by counsel or other representatives of Seller's own choosing. In such event, Buyer shall pay to Seller, in addition to any other sums required to be paid hereunder, the costs and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of expenses incurred by Seller in connection with such claims at any time prior to settlementdefense, compromise or final determination thereofsettlement as and when such costs and expenses are so incurred.
(cd) Anything in this Section 6.03 13.03 to the contrary notwithstanding, (i) if there is a reasonable probability that a Claim may materially and adversely affect Seller, Seller shall have the indemnifying party shall not settle any claim without right, at its own cost and expense, to participate in the consent defense, compromise or settlement of the party Claim, (ii) Buyer shall not, without Seller's written consent (such consent not to be indemnified unless such settlement involves only unreasonably withheld, conditioned or delayed), settle or compromise any Claim or consent to entry of any judgment which does not include as an unconditional term thereof the payment of money and giving by the claimant provides or the plaintiff to the party to be indemnified Seller a release from all liability in respect of such claim. If Claim in a form reasonably satisfactory to Seller, (iii) in the settlement event that Buyer undertakes defense of any Claim, Seller, by counsel or other representative of its own choosing and at its sole cost and expense, shall have the right to consult with Buyer and its counsel or other representatives concerning such Claim, and ▇▇▇▇▇ and Seller and their respective counsel or other representatives shall reasonably cooperate with respect to such Claim, and (iv) in the event that Buyer undertakes defense of any Claim, Buyer shall have an obligation to keep Seller informed of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent status of the party to be indemnified, which consent shall not be unreasonably withheld.
(d) The party to be indemnified defense of such Claim and the indemnifying party will each cooperate furnish Seller with all reasonable requests documents, instruments and information that Seller shall reasonably request in connection therewith. Notwithstanding the foregoing, in the event Buyer undertakes the defense of any Claim, Seller shall have the otherright to employ its own counsel at Buyer's expense if Seller shall have reasonably concluded and specifically notified Buyer that there may be one or more specific defenses available to it which are different from or additional to those available to Buyer or there otherwise exists a conflict of interest between Seller and Buyer.
Appears in 3 contracts
Sources: Asset Purchase and Sale Agreement, Asset Purchase and Sale Agreement, Asset Purchase and Sale Agreement
Conditions of Indemnification. The respective obligations and liabilities of Seller the Company and Purchaser Principal Shareholders and Parent (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 11.01 and 6.02 hereof 11.02 with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgmentposition) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, provided that the party to be indemnified may participate in the defense with counsel of its own choice choice, the fees and expenses of which counsel shall be paid by the party to be indemnified unless (i) the indemnifying party has agreed to pay such fees and expenses, (ii) the indemnifying party has failed to assume the defense of such action or (iii) the named parties to any such action (including any impleaded parties) include both the indemnifying party and the party to be indemnified and the party to be indemnified has been advised by counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the indemnifying party (in which case, if the party to be indemnified informs the indemnifying party in writing that it elects to employ separate counsel at its own expensethe expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action on behalf of the party to be indemnified, it being understood, however, that the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for the party to be indemnified, which firm shall be designated in writing by the party to be indemnified).
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to Notwithstanding the contrary notwithstandingforegoing, the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 3 contracts
Sources: Merger Agreement (Smith Jack T), Merger Agreement (Palmer J N Family Partnership), Merger Agreement (Ladin William E Jr)
Conditions of Indemnification. The respective several obligations and liabilities of Seller the Purchasers, on the one hand, and Purchaser the Company, on the other hand (the "indemnifying partyINDEMNIFYING PARTY") ), to the other (the "party to be indemnifiedPARTY TO BE INDEMNIFIED") under Sections 6.01 and 6.02 Section 7.02 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.choosing;
(b) In in the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th tenth day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person Person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims claim at any time prior to settlement, compromise or final determination thereof., provided that the indemnifying party shall be given at least 15 days prior written notice of the effectiveness of any such proposed settlement or compromise;
(c) Anything anything in this Section 6.03 7.03 to the contrary notwithstandingnotwithstanding (i) if there is a reasonable probability that a claim may materially and adversely affect the indemnifying party other than as a result of money damages or other money payments, the indemnifying party shall not have the right, at its own cost and expense, to compromise or settle any claim such claim, but (ii) the indemnifying party shall not, without the prior written consent of the party to be indemnified unless such settlement involves only indemnified, settle or compromise any claim or consent to the payment entry of money and any judgment which does not include as an unconditional term thereof the giving by the claimant provides or the plaintiff to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.; and
(d) The party to be in connection with any such indemnification, the indemnified and the indemnifying party will each cooperate with in all reasonable requests of the otherindemnifying party.
Appears in 3 contracts
Sources: Securities Purchase Agreement (Savvis Communications Corp), Securities Purchase Agreement (Savvis Communications Corp), Securities Purchase Agreement (Savvis Communications Corp)
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (the "indemnifying party") If any indemnified party expects to seek indemnification under this Article, such party shall promptly give notice to the indemnifying party of its claim of indemnification and the basis therefor. If indemnification is sought based on a claim asserted by a Third Party, the party seeking indemnification shall also provide to the indemnifying party copies of any pleadings or other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof with respect to claims resulting documents received from the assertion Third Party evidencing the claim. Failure to notify an indemnifying party in accordance with this Section 10.3 shall not relieve the indemnifying party of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or its obligation of indemnity unless such earlier time as might be required to avoid prejudicing failure materially prejudices the indemnifying party's position including rights. An indemnifying party may participate at its own expense in the entry defense of any Third Party claim as to which it receives a default judgment) notice of claim of indemnity. If it so elects within a reasonable time after receipt of notice of commencement of any action evidenced by service of process or other legal pleadingsuch notice, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior claim with counsel chosen by it and approved by the indemnified party unless the indemnified party reasonably objects to settlement, compromise such assumption on the ground that there may be legal defenses available to it which are different from or final determination thereof.
(c) Anything in this Section 6.03 addition to those available to the contrary notwithstandingindemnifying party. If the indemnifying party assumes the defense of the claim, the indemnifying party shall not settle be liable for any claim without fees and expenses of counsel for the consent of indemnified party incurred thereafter in connection with the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, In no event shall the indemnifying party shall not settle be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from its own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the claim without the prior consent same jurisdiction arising out of the same general allegations or circumstances. No offer of settlement, settlement or compromise shall be binding on either party to be indemnified, hereto without its prior written consent (which consent shall not be unreasonably withheld) unless such settlement fully releases the other party without any liability, loss, cost or obligation to such party.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 3 contracts
Sources: License Agreement (Healthetech Inc), License Agreement (Healthetech Inc), License Agreement (Healthetech Inc)
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (a) A party entitled to indemnification hereunder (the "indemnifying partyIndemnified Party") to shall notify the other party or parties liable for such indemnification (the "party to be indemnifiedIndemnified Party") under Sections 6.01 and 6.02 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by Claim or potential liability for Taxes ("Tax Claim") which the Indemnified Party has determined has given or could give rise to a third party, right of indemnification under this Agreement. Such notice shall be given within a reasonable (taking into account the party to be indemnified nature of the Claim or Tax Claim) period of time after the Indemnified Party has actual knowledge thereof. The Indemnifying Party shall give the indemnifying party satisfy its obligations under this Article 7 within forty days after receipt of subsequent written notice thereof together with a copy from the Indemnified Party if an amount is specified therein, or promptly following receipt of subsequent written notice or notices specifying the amount of such claim, process Claim or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expenseTax Claim additions thereto; provided, however, that for so long as the party Indemnifying Party is in good faith defending a Claim or Tax Claim pursuant to Section 7.3(b) hereof, its obligation to indemnify the Indemnified Party with respect thereto shall be indemnified may participate in suspended (other than with respect to any costs, expenses or other liabilities incurred by the Indemnified Party prior to the assumption of the defense with counsel by the Indemnifying Party). Failure to provide a notice of its own choice and at its own expenseClaim or Tax Claim within the time period referred to above shall not constitute a defense to a Claim or Tax Claim or release the Indemnifying Party from any obligation hereunder to the extent that such failure does not prejudice the position of the Indemnifying Party.
(b) In If the facts giving rise to any such indemnification involve any actual, threatened or possible Claim or demand or Tax Claim by any person not a party to this Agreement against the Indemnified Party, the Indemnifying Party shall be entitled to contest or defend such Claim or demand Tax Claim at its expense and through counsel of its own choosing, which counsel shall be reasonably acceptable to the Indemnified Party, such right to contest or defend shall only apply if the Indemnifying Party gave written notice of its intention to assume the contest and defense of such Claim or demand Tax Claim to the Indemnified Party as soon as practicable, but in no event that the indemnifying party, by the 30th day more than thirty days after receipt of the notice of Claims or Tax Claim, and provided the Indemnified Party with appropriate assurances as to the creditworthiness of the Indemnifying Party, and that the Indemnifying Party will be in a position to pay all fees, expenses and judgments that might arise out of such Claim or demand Tax Claim. The Indemnified Party shall have the obligation to cooperate in the defense of any such claim (orClaim or demand Tax Claim and the right, if earlierat its own expense, to participate in the defense of any Claim or Tax Claim. So long as the Indemnifying Party is defending in good faith any such Claim or demand Tax Claim asserted by a third party against the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claimIndemnified Party, the party to be indemnified will (upon further notice to the indemnifying party) Indemnified Party shall not settle or compromise such Claim or demand Tax Claim. The Indemnifying Party shall have the right to undertake the defense, settle or compromise any such Claim or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to the contrary notwithstanding, the indemnifying party shall not settle any claim demand Tax Claim without the consent of the party Indemnified Party at any time utilizing its own funds to be indemnified unless do so if in connection with such settlement involves only or compromise the payment of money Indemnified Party is fully released by the third party and the claimant provides is paid in full any indemnification amounts due hereunder. The Indemnified Party shall make available to the Indemnifying Party or its agents all records and other materials in the Indemnified Party's possession reasonably required by it for its use in contesting any third party to be indemnified a release from all liability in respect of such claim. If Claim or demand Tax Claim and shall otherwise cooperate, at the settlement expense of the claim involves more than Indemnifying Party, in the payment of moneydefense thereof in such manner as the Indemnifying Party may reasonably request. Whether or not the Indemnifying Party elects to defend such Claim or demand Tax Claim, the indemnifying party Indemnified Party shall not settle the claim without the prior consent of the party have no obligation to be indemnified, which consent shall not be unreasonably withhelddo so.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 3 contracts
Sources: Securities Exchange Agreement (Brighton Technologies Corp), Securities Exchange Agreement (Great American Backrub Store Inc), Securities Exchange Agreement (Decorize Inc)
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (the "indemnifying party") party to the other (the "party to be indemnified") indemnified under Sections 6.01 6.1 and 6.02 hereof 6.2 with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgmentposition) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, provided that the party to be indemnified may participate in the defense with counsel of its own choice choice, the fees and expenses of which counsel shall be paid by the party to be indemnified unless (i) the indemnifying party has agreed to pay such fees and expenses, (ii) the indemnifying party has failed to assume the defense of such action or (iii) the named parties to any such action (including any impleaded parties) include both the indemnifying party and the party to be indemnified and the party to be indemnified has been advised by counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the indemnifying party, in which case, if the party to be indemnified informs the indemnifying party in writing that it elects to employ separate counsel at its own expensethe expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action on behalf of the party to be indemnified.
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to Notwithstanding the contrary notwithstandingforegoing, the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior written consent of the party to be indemnified, which such consent shall not to be unreasonably withheld.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 2 contracts
Sources: Partnership Interest Purchase Agreement (U S Physical Therapy Inc /Nv), Partnership Interest Purchase Agreement (U S Physical Therapy Inc /Nv)
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 5.1 and 6.02 5.2 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgmentposition) after receipt of notice of commencement of any legal action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing (but subject to the approval of the indemnified party which approval will not be unreasonably withheld or delayed) and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expenseexpense and, provided further, that the failure of the party to be indemnified to give timely notice shall not affect the right to indemnification hereunder except to the extent (and then only to the extent) the indemnifying party proves actual damages caused by such failure.
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims in accordance with this Section 5.3(b) at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 5.3 to the contrary notwithstanding, the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Hyperfeed Technologies Inc), Asset Purchase Agreement (Hyperfeed Technologies Inc)
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (a) A party entitled to indemnification hereunder (the "indemnifying partyIndemnified Party") to shall notify the other party or parties liable for such indemnification (the "party to be indemnifiedIndemnified Party") under Sections 6.01 and 6.02 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by Claim or potential liability for Taxes ("Tax Claim") which the Indemnified Party has determined has given or could give rise to a third party, right of indemnification under this Agreement. Such notice shall be given within a reasonable (taking into account the party to be indemnified nature of the Claim or Tax Claim) period of time after the Indemnified Party has actual knowledge thereof. The Indemnifying Party shall give the indemnifying party satisfy its obligations under this Article 8 within forty days after receipt of subsequent written notice thereof together with a copy from the Indemnified Party if an amount is specified therein, or promptly following receipt of subsequent written notice or notices specifying the amount of such claim, process Claim or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expenseTax Claim additions thereto; provided, however, that for so long as the party Indemnifying Party is in good faith defending a Claim or Tax Claim pursuant to Section 8.3(b) hereof, its obligation to indemnify the Indemnified Party with respect thereto shall be indemnified may participate in suspended (other than with respect to any costs, expenses or other liabilities incurred by the Indemnified Party prior to the assumption of the defense with counsel by the Indemnifying Party). Failure to provide a notice of its own choice and at its own expenseClaim or Tax Claim within the time period referred to above shall not constitute a defense to a Claim or Tax Claim or release the Indemnifying Party from any obligation hereunder to the extent that such failure does not prejudice the position of the Indemnifying Party.
(b) In If the facts giving rise to any such indemnification involve any actual, threatened or possible Claim or demand or Tax Claim by any person not a party to this Agreement against the Indemnified Party, the Indemnifying Party shall be entitled to contest or defend such Claim or demand Tax Claim at its expense and through counsel of its own choosing, which counsel shall be reasonably acceptable to the Indemnified Party, such right to contest or defend shall only apply if the Indemnifying Party gave written notice of its intention to assume the contest and defense of such Claim or demand Tax Claim to the Indemnified Party as soon as practicable, but in no event that the indemnifying party, by the 30th day more than thirty days after receipt of the notice of Claims or Tax Claim, and provided the Indemnified Party with appropriate assurances as to the creditworthiness of the Indemnifying Party, and that the Indemnifying Party will be in a position to pay all fees, expenses and judgments that might arise out of such Claim or demand Tax Claim. The Indemnified Party shall have the obligation to cooperate in the defense of any such claim (orClaim or demand Tax Claim and the right, if earlierat its own expense, to participate in the defense of any Claim or Tax Claim. So long as the Indemnifying Party is defending in good faith any such Claim or demand Tax Claim asserted by a third party against the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claimIndemnified Party, the party to be indemnified will (upon further notice to the indemnifying party) Indemnified Party shall not settle or compromise such Claim or demand Tax Claim. The Indemnifying Party shall have the right to undertake the defense, settle or compromise any such Claim or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to the contrary notwithstanding, the indemnifying party shall not settle any claim demand Tax Claim without the consent of the party Indemnified Party at any time utilizing its own funds to be indemnified unless do so if in connection with such settlement involves only or compromise the payment of money Indemnified Party is fully released by the third party and the claimant provides is paid in full any indemnification amounts due hereunder. The Indemnified Party shall make available to the Indemnifying Party or its agents all records and other materials in the Indemnified Party's possession reasonably required by it for its use in contesting any third party to be indemnified a release from all liability in respect of such claim. If Claim or demand Tax Claim and shall otherwise cooperate, at the settlement expense of the claim involves more than Indemnifying Party, in the payment of moneydefense thereof in such manner as the Indemnifying Party may reasonably request. Whether or not the Indemnifying Party elects to defend such Claim or demand Tax Claim, the indemnifying party Indemnified Party shall not settle the claim without the prior consent of the party have no obligation to be indemnified, which consent shall not be unreasonably withhelddo so.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 2 contracts
Sources: Securities Exchange Agreement (Columbialum LTD), Securities Exchange Agreement (Global Itechnology Inc)
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within In order for a member of the Purchaser Group or Company Group to be entitled to indemnification pursuant Section 8.02 of this Agreement in respect of, arising out of, or involving a claim made by any person not a party to this Agreement (a "Third Party Claim"), the indemnified party must within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process action, suit or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by proceeding relating to a third party, the party to be indemnified shall Third Party Claim give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleadingpleading (provided that failure so to notify the indemnifying party of the assertion of a claim within such period shall not affect the indemnifying party's indemnity obligation hereunder except as and to the extent that such failure shall actually and materially adversely affect the defense of such claim), and, subject to Sections 8.03(b), (c) and (e) below, the indemnifying party shall have the right to undertake the defense thereof by representatives counsel of its own choosing and at its own expensethat is reasonably acceptable to the indemnified party; provided, however, that if the indemnifying party is also a party to such proceeding and the indemnified party determines in good faith upon advice of counsel that joint representation would be inappropriate, the indemnifying party shall not have the right to undertake such defense but shall remain liable for the fees and expenses of counsel incurred by the indemnified may participate party in the defense with counsel of its own choice and at its own expensedefending such Third Party Claim.
(b) In the event that the indemnifying party, by the 30th 20th day after receipt of notice of any such claim Third Party Claim (or, if earlier, by the 10th tenth day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claimThird Party Claim), does not elect to defend against such claim, the indemnified party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, it being understood that the indemnifying party shall control such defense.
(d) If the indemnifying party assumes the defense of a Third Party Claim, (i) no compromise or settlement of such Third Party Claim may be effected by the indemnifying party without the indemnified party's consent unless (A) there is no finding or admission of any violation of Law or any violation of the rights of any person and no effect on any other claims that may be made against the indemnified party and (B) the sole relief provided is monetary damages that are paid in full by the indemnifying party and (ii) the indemnified party will have no liability with respect to any compromise or settlement of such Third Party Claim effected without its consent.
(e) Anything in this Section 6.03 8.03 to the contrary notwithstanding, the indemnifying party shall not settle be entitled to assume the defense of any Third Party Claim if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with counsel, cannot be separated from any related claim without the consent for money damages (it being understood that if such equitable relief or other relief portion of the party to Third Party Claim can be indemnified unless such settlement involves only the payment of so separated from that for money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of moneydamages, the indemnifying party shall not settle be entitled to assume the defense of the portion relating to money damages). In such event, the indemnified party will have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party; provided, that no compromise or settlement of such Third Party Claim may be effected by the indemnified party without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheldindemnifying party's consent.
(df) The party to be In connection with any Third Party Claim, the indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.Company and the Company will cooperate with all reasonable requests of the indemnified party. 52
Appears in 2 contracts
Sources: Securities Purchase Agreement (Labone Inc/), Securities Purchase Agreement (Welsh Carson Anderson & Stowe Ix Lp)
Conditions of Indemnification. The respective obligations and liabilities of the Company and Seller and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 8.1 and 6.02 hereof 8.2 with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgmentposition) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, provided that the party to be indemnified may participate in the defense with counsel of its own choice choice, the fees and expenses of which counsel shall be paid by the party to be indemnified unless (i) the indemnifying party has agreed to pay such fees and expenses, (ii) the indemnifying party has failed to assume the defense of such action or (iii) the named parties to any such action (including any impleaded parties) include both the indemnifying party and the party to be indemnified and the party to be indemnified has been advised by counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the indemnifying party (in which case, if the party to be indemnified informs the indemnifying party in writing that it elects to employ separate counsel at its own expensethe expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action on behalf of the party to be indemnified, it being understood, however, that the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for the party to be indemnified, which firm shall be designated in writing by the party to be indemnified).
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to Notwithstanding the contrary notwithstandingforegoing, the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 2 contracts
Sources: Stock Purchase Agreement (NewMarket Technology Inc), Stock Purchase Agreement (Virtualhealth Technologies Inc.)
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (the "indemnifying party") If either Party proposes to seek indemnification from the other (under the "party to be indemnified") under Sections 6.01 and 6.02 hereof with respect to claims resulting from provisions of this Section IX, it shall notify the assertion other Party within 15 days of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement any Claim and shall cooperate fully with the other Party in the defense of such claims or suits. The indemnified Party shall cooperate with the indemnifying Party (at the indemnifying Party’s expense) in all respects in connection with the defense of any action evidenced by service of process or other legal pleadingsuch Claim. The indemnifying Party shall, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party upon written notice thereof together from the indemnified Party of a Claim, undertake to conduct all proceedings or negotiations in connection with a copy of such claimthe Claim, process or other legal pleadingassume the defense thereof, and all other required steps or proceedings to settle or defend any such Claim, including the indemnifying party selection of counsel that shall be approved by the indemnified Party, which approval shall not be unreasonably withheld, and payment of all reasonable expenses. The indemnified Party shall have the right to undertake the defense thereof by representatives of its own choosing employ separate counsel and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own the indemnified Party’s sole expense.
(b) In the event that . If the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect Party fails to defend against such claimor settle in good faith any Claim as provided above, then the party to be indemnified will (upon further notice to the indemnifying party) Party shall have the right to undertake the defense, compromise or settlement take over sole control of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlementthe Claim and all negotiations for its settlement or compromise, compromise provided that the indemnifying Party shall be liable for (and shall pay as they become due) all costs and expenses (including attorneys’ fees) reasonably incurred by the indemnified Party in its defending or final determination thereof.
(c) Anything in this Section 6.03 to negotiating settlement of the contrary notwithstandingClaim. Notwithstanding the foregoing, the indemnifying party shall not settle any claim without Party primarily responsible for handling the Claim (as determined above) will first obtain the prior written consent of the party to be indemnified unless such other Party for any settlement involves only of a Claim that (i) does not include a complete release of the payment of money and the claimant provides to the party to be indemnified a release other Party from all liability in with respect of such claim. If thereto, (ii) compromises the settlement rights of the claim involves more than other Party, or (iii) imposes any restrictions on the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheldother Party.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 2 contracts
Sources: License Agreement (Affymetrix Inc), Diagnostic Product and Instrument Agency Agreement (Affymetrix Inc)
Conditions of Indemnification. The respective obligations and liabilities of Seller Sellers and Purchaser Buyer (herein sometimes called the "indemnifying party") to the other (herein sometimes called the "party to be indemnified") under Sections 6.01 and 6.02 Section 10.02 hereof with respect to third party claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing writing, formal or informal, of any claim claim, audit or inquiry by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to respond to such action, claim, audit or inquiry and to undertake the defense thereof by representatives of its own choosing and at its own expenseto enter into a settlement or compromise thereof or consent to a judgment with respect thereto; provided, however, the indemnifying party shall not, without the prior written consent of the party to be indemnified, settle or compromise any claim or consent to the entry of any judgment (i) that does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the party to be indemnified may participate a release from all liability in respect of such claim, or (ii) that contemplates any payment or performance by the defense with counsel of its own choice and at its own expenseparty to be indemnified.
(b) In in the event that the indemnifying party, by the 30th 15th day after receipt of notice of any such claim claim, audit or inquiry (or, if earlier, by the 10th tenth day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to respond to such action, claim, audit or inquiry and to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims claim at any time prior to settlement, compromise or final determination thereof., provided that the indemnifying party shall be given at least 10 days' prior written notice to the effectiveness of any such proposed settlement or compromise; and
(c) Anything in this Section 6.03 to the contrary notwithstandingIn connection with any such indemnification, the indemnifying indemnified party shall not settle any claim without the consent cooperate in all reasonable requests of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheldparty.
(d) The Notwithstanding the foregoing, nothing in this Section 10.03 shall be deemed to delay or prevent the right of any party to be indemnified and from commencing any action to compel the indemnifying party will each cooperate with all reasonable requests of the otherto pay any Damages or obligations described herein.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Teletrac Inc /De), Asset Purchase Agreement (Teletrac Inc /De)
Conditions of Indemnification. The respective obligations and liabilities of Seller the Purchasers, on the one hand, and Purchaser the Company, on the other hand (the "indemnifying party") ), to the other (the "party to be indemnified") under Sections 6.01 and 6.02 Section 5.02 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.choosing;
(b) In in the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th tenth day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims claim at any time prior to settlement, compromise or final determination thereof., provided that the indemnifying party shall be given at least 15 days prior written notice of the effectiveness of any such proposed settlement or compromise;
(c) Anything anything in this Section 6.03 5.03 to the contrary notwithstandingnotwithstanding (i) if there is a reasonable probability that a claim may materially and adversely affect the indemnifying party other than as a result of money damages or other money payments, the indemnifying party shall not have the right, at its own cost and expense, to compromise or settle any claim such claim, but (ii) the indemnifying party shall not, without the prior written consent of the party to be indemnified unless such settlement involves only indemnified, settle or compromise any claim or consent to the payment entry of money and any judgment which does not include as an unconditional term thereof the giving by the claimant provides or the plaintiff to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.; and
(d) The party to be in connection with any such indemnification, the indemnified and the indemnifying party will each cooperate with in all reasonable requests of the otherindemnifying party.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Savvis Communications Corp), Securities Purchase Agreement (Welsh Carson Anderson Stowe Viii Lp)
Conditions of Indemnification. The respective several obligations and liabilities of Seller the Purchaser, on the one hand, and Purchaser the Company, on the other hand (the "indemnifying party") ), to the other (the "party to be indemnified") under Sections 6.01 and 6.02 Section 7.02 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.choosing;
(b) In in the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th tenth day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person Person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims claim at any time prior to settlement, compromise or final determination thereof., provided that the indemnifying party shall be given at least 15 days prior written notice of the effectiveness of any such proposed settlement or compromise;
(c) Anything anything in this Section 6.03 7.03 to the contrary notwithstandingnotwithstanding (i) if there is a reasonable probability that a claim may materially and adversely affect the indemnifying party other than as a result of money damages or other money payments, the indemnifying party shall not have the right, at its own cost and expense, to compromise or settle any claim such claim, but (ii) the indemnifying party shall not, without the prior written consent of the party to be indemnified unless such settlement involves only indemnified, settle or compromise any claim or consent to the payment entry of money and any judgment which does not include as an unconditional term thereof the giving by the claimant provides or the plaintiff to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.; and
(d) The party to be in connection with any such indemnification, the indemnified and the indemnifying party will each cooperate with in all reasonable requests of the otherindemnifying party.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Reuters Group PLC), Securities Purchase Agreement (Savvis Communications Corp)
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (the "indemnifying partyIndemnifying Party") to the other (herein sometimes called the "party to be indemnifiedIndemnified Party") under Sections 6.01 9.1 and 6.02 9.2 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice (referred to herein as "notice") of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing writing, formal or informal, of any claim claim, audit or inquiry by a third partyperson (referred to herein as a "claim"), the party to be indemnified Indemnified Party shall give the indemnifying party Indemnifying Party written notice thereof together with a copy of the document asserting such claim, process or other legal pleading, and the indemnifying party Indemnifying Party shall have the right to respond to such claim and to undertake the defense thereof by representatives a representative of its own choosing and at its own expenseto enter into a settlement or compromise thereof or consent to a judgment with respect thereto; provided, however, the Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle or compromise any claim or consent to the entry of judgment (i) that does not include as an unconditional term thereof the party giving by the claimant or the plaintiff to be indemnified may participate the Indemnified Party a release from all liability in respect of such claim, or (ii) that contemplates any payment or performance by the defense with counsel of its own choice and at its own expenseIndemnified Party.
(b) In the event that the indemnifying partyIndemnifying Party, by the 30th 20th day after receipt of notice of any such a claim (or, if earlier, by the 10th tenth day preceding the day on which an answer or other a responsive pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), (i) does not elect to defend against such claim, and (ii) if an election to defend is made, does not provide reasonable assurances to the party Indemnified Party of the Indemnifying Party's (or its insurer's) ability to pay defense costs and indemnity costs likely to be indemnified will (incurred with respect to the claim, the Indemnified Party will, upon further notice to the indemnifying party) Indemnifying Party, have the right to respond to such claim and to undertake the to defense, compromise or settlement of such claim on behalf of and for the account and risk of loss of the indemnifying party and at the indemnifying party's expenseIndemnifying Party, subject to the right of the indemnifying party Indemnifying Party to assume the defense of such claims claim upon satisfying conditions (i) and (ii) above at any time prior to the settlement, compromise or final determination thereof (if such assumption be permitted by any court or other tribunal having jurisdiction thereof.
), provided that the Indemnifying Party shall be given at least 15 days' prior written notice of the effectiveness of any such proposed settlement or compromise; (c) Anything in this Section 6.03 to the contrary notwithstandingIn connection with any such indemnification, the indemnifying party Indemnified Party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability cooperate in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the otherIndemnifying Party.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Goran Capital Inc), Stock Purchase Agreement (Symons International Group Inc)
Conditions of Indemnification. The respective obligations and liabilities of Seller Shareholder, Parent and Purchaser Merger Sub (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 8.1 and 6.02 hereof 8.2 above with respect to claims resulting from the assertion of liability by third parties ("Third Party Claims") shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgmentposition) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, provided that the party to be indemnified may participate in the defense with counsel of its own choice choice, the fees and expenses of which counsel shall be paid by the party to be indemnified unless (i) the indemnifying party has agreed to pay such fees and expenses, (ii) the indemnifying party has failed to assume the defense of such action or (iii) the named parties to any such action (including any impleaded parties) include both the indemnifying party and the party to be indemnified and the party to be indemnified has been advised by counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the indemnifying party (in which case, if the party to be indemnified informs the indemnifying party in writing that it elects to employ separate counsel at its own expensethe expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action on behalf of the party to be indemnified, it being understood, however, that the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for the party to be indemnified, which firm shall be designated in writing by the party to be indemnified).
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to Notwithstanding the contrary notwithstandingforegoing, the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified. The indemnified party will not settle any claim without the consent of the indemnifying party, which consent shall will not be unreasonably withheldwithheld or delayed; provided, however, if such consent is not given, then the indemnifying party shall be responsible for all costs and expenses pertaining to such matter thereafter and all judgments, settlements or the like in excess of the amount of such settlement offer.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 2 contracts
Sources: Merger Agreement (Mobility Electronics Inc), Merger Agreement (Mobility Electronics Inc)
Conditions of Indemnification. The respective indemnification obligations and liabilities of Seller and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof Parties hereto with respect to claims resulting from the assertion of liability made by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be The indemnified shall Party will give the indemnifying party written Party prompt notice thereof together with a copy of any such claim, process or other legal pleading, and the indemnifying party Party shall have the right to undertake the defense thereof thereof, at the indemnifying Party's expense, by representatives of its own choosing chosen by the indemnifying Party and at its own expense; provided, however, that reasonably acceptable to the party to be indemnified may participate in the defense with counsel of its own choice and at its own expenseParty.
(b) In the event that If the indemnifying partyParty undertakes the defense of any such claim, the indemnified Party shall, to the best of its ability, assist the indemnifying Party, at the indemnifying Party's expense, in the defense of such claim and shall promptly send to the indemnifying Party, at the indemnifying Party's expense, copies of any documents received by the 30th day indemnified Party that relate to such claim.
(c) If the indemnifying Party, within a reasonable time after receipt of notice of any such claim (orclaim, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect fails to defend the indemnified Party against which such claimclaim has been asserted, the party to be indemnified will Party shall (upon further notice to the indemnifying partyParty) have the right to undertake the defense, compromise compromise, or settlement of such claim on behalf of and for the account and risk of the indemnifying party and Party, at the indemnifying partyParty's expense, subject to the right of the indemnifying party Party to assume the defense of such claims claim at any time prior to settlement, compromise compromise, or final determination thereof.
(cd) Anything If, in this Section 6.03 the opinion of the indemnified Party's legal counsel, a conflict of interest with respect to the contrary notwithstanding, the indemnifying party shall not settle any claim without exists between the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified Party against which a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.
(d) The party to be indemnified has been asserted and the indemnifying party will each cooperate Party, then such indemnified Party shall have the right to retain its own counsel with all respect to such claim; provided that the reasonable requests fees and expenses of such counsel shall be at the expense of the otherindemnifying Party.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Amazing Technologies Corp.), Asset Purchase Agreement (Amazing Technologies Corp.)
Conditions of Indemnification. The respective obligations of Novartis and liabilities of Seller and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") Reliant under Sections 6.01 and 6.02 hereof with respect to claims resulting from the assertion of liability by third parties this Article 5 shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of The party claiming a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives indemnification shall, within ten (10) business days of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (orclaim, if earliercharge, by the 10th day preceding the day on which an answer suit or other pleading must be served action, give, in order to prevent judgment by default in favor of the person asserting such claim)accordance with Article 6, does not elect to defend against such claim, the party to be indemnified will (upon further written notice to the indemnifying party) have , of any such claim, charge, suit or other action which is governed by the right indemnity obligations of this Agreement but the failure to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of notify the indemnifying party and at the indemnifying party's expense, subject to the right of will not relieve the indemnifying party of any Liability that it may have to assume the party claiming a right of indemnification, except to the extent that the defense of such claims action by the indemnifying party is prejudiced by the failure to give such notice;
(b) The indemnifying party shall conduct, at its own expense, the defense of any time prior to settlementand all such claims, compromise charges, suits or final determination thereof.other actions by a third-party;
(c) Anything in this Section 6.03 Each party will offer reasonable assistance to the contrary notwithstanding, other party in defending or settling the indemnifying claim. Neither party shall not settle or admit liability with respect to any claim such claims, charges, suits or other actions which could result in liability to the other party without the prior written consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnifiedother party, which consent shall not be unreasonably withheldwithheld or delayed; provided however, neither party may settle a claim or action related to a Liability without the consent of the other party, if such settlement would impose any monetary obligation on the other party or require the other party to submit to an injunction or otherwise limit the other party’s rights under this Agreement.
(d) The party to be indemnified and If the indemnifying party will each cooperate with does not take the steps necessary against any such claims, charges, suits or other action by a third-party, the party claiming indemnification may defend against or settle such claims, charges, suits or other action, provided, that such party may not settle such claims, charges, suits or other action without the prior written consent of the indemnifying party which consent shall not be unreasonably withheld or delayed; provided however, the defense and/or settlement under this Article 5 shall not act as a waiver of rights to indemnification under this Agreement or any other rights or remedies of a party claiming indemnification and shall not excuse the indemnifying party from its obligations hereunder, and all reasonable requests of costs and expenses incurred by the otherparty claiming indemnification shall be subject to indemnity by the indemnifying party.
Appears in 2 contracts
Sources: Exclusive Sublicense Agreement, Exclusive Sublicense Agreement (Reliant Pharmaceuticals, Inc.)
Conditions of Indemnification. The respective obligations and liabilities of Seller the Selling Shareholders, on the one hand, and Purchaser the Purchaser, on the other hand (herein sometimes called the "indemnifying party") ), to the other (herein sometimes called the "party to be indemnified") under Sections 6.01 and Section 6.02 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleadingpleading (provided that failure so to notify the indemnifying party of the assertion of a claim within such period shall not affect its indemnity obligation hereunder except as and to the extent that such failure shall adversely affect the defense of such claim), and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expensechoosing.
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th tenth day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims claim at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to Except with the contrary notwithstanding, the indemnifying party shall not settle any claim without the prior written consent of the indemnified party, no indemnifying party, in the defense of such claim or litigation, shall consent to entry of any judgment or order, interim or otherwise, or enter into any settlement that provides for injunctive or other nonmonetary relief affecting the indemnified party or that does not include as an unconditional term thereof the giving by each claimant or plaintiff to be such indemnified unless such settlement involves only the payment party of money and the claimant provides to the party to be indemnified a release from all liability with respect to such claim or litigation. In the event that the indemnified party shall in good faith determine that the indemnified party may have available to it one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the indemnifying party in respect of such claim. If claim or any litigation relating thereto, the settlement indemnified party shall have the right at all times to take over and assume control over the defense, settlement, negotiations or litigation relating to such claim at the sole cost of the claim involves more than indemnifying party; provided, however, that if the payment of moneyindemnified party does so take over and assume control, the indemnifying indemnified party shall not settle the such claim or litigation without the prior written consent of the party indemnifying party, such consent not to be indemnified, which consent shall not be unreasonably withheld.
(d) The In connection with any such indemnification, the indemnified party to be indemnified and the indemnifying party will each shall cooperate with in all reasonable requests of the otherindemnifying party.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Golden Sky Systems Inc), Stock Purchase Agreement (Golden Sky Systems Inc)
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days A party entitled to indemnification hereunder (the “Indemnified Party”) shall notify the party or parties liable for such earlier time as might be required to avoid prejudicing indemnification (the indemnifying party's position including the entry of a default judgment“Indemnified Party”) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by Claim or potential liability for Taxes (“Tax Claim”) which the Indemnified Party has determined has given or could give rise to a third party, right of indemnification under this Agreement. Such notice shall be given within a reasonable (taking into account the party to be indemnified nature of the Claim or Tax Claim) period of time after the Indemnified Party has actual knowledge thereof. The Indemnifying Party shall give the indemnifying party satisfy its obligations under this Article 8 within forty days after receipt of subsequent written notice thereof together with a copy from the Indemnified Party if an amount is specified therein, or promptly following receipt of subsequent written notice or notices specifying the amount of such claim, process Claim or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expenseTax Claim additions thereto; provided, however, that for so long as the party Indemnifying Party is in good faith defending a Claim or Tax Claim pursuant to Section 8.3(b) hereof, its obligation to indemnify the Indemnified Party with respect thereto shall be indemnified may participate in suspended (other than with respect to any costs, expenses or other liabilities incurred by the Indemnified Party prior to the assumption of the defense with counsel by the Indemnifying Party). Failure to provide a notice of its own choice and at its own expenseClaim or Tax Claim within the time period referred to above shall not constitute a defense to a Claim or Tax Claim or release the Indemnifying Party from any obligation hereunder to the extent that such failure does not prejudice the position of the Indemnifying Party.
(b) In If the facts giving rise to any such indemnification involve any actual, threatened or possible Claim or demand or Tax Claim by any person not a party to this Agreement against the Indemnified Party, the Indemnifying Party shall be entitled to contest or defend such Claim or demand Tax Claim at its expense and through counsel of its own choosing, which counsel shall be reasonably acceptable to the Indemnified Party, such right to contest or defend shall only apply if the Indemnifying Party gave written notice of its intention to assume the contest and defense of such Claim or demand Tax Claim to the Indemnified Party as soon as practicable, but in no event that the indemnifying party, by the 30th day more than thirty days after receipt of the notice of Claims or Tax Claim, and provided the Indemnified Party with appropriate assurances as to the creditworthiness of the Indemnifying Party, and that the Indemnifying Party will be in a position to pay all fees, expenses and judgments that might arise out of such Claim or demand Tax Claim. The Indemnified Party shall have the obligation to cooperate in the defense of any such claim (orClaim or demand Tax Claim and the right, if earlierat its own expense, to participate in the defense of any Claim or Tax Claim. So long as the Indemnifying Party is defending in good faith any such Claim or demand Tax Claim asserted by a third party against the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claimIndemnified Party, the party to be indemnified will (upon further notice to the indemnifying party) Indemnified Party shall not settle or compromise such Claim or demand Tax Claim. The Indemnifying Party shall have the right to undertake the defense, settle or compromise any such Claim or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to the contrary notwithstanding, the indemnifying party shall not settle any claim demand Tax Claim without the consent of the party Indemnified Party at any time utilizing its own funds to be indemnified unless do so if in connection with such settlement involves only or compromise the payment of money Indemnified Party is fully released by the third party and the claimant provides is paid in full any indemnification amounts due hereunder. The Indemnified Party shall make available to the Indemnifying Party or its agents all records and other materials in the Indemnified Party’s possession reasonably required by it for its use in contesting any third party to be indemnified a release from all liability in respect of such claim. If Claim or demand Tax Claim and shall otherwise cooperate, at the settlement expense of the claim involves more than Indemnifying Party, in the payment of moneydefense thereof in such manner as the Indemnifying Party may reasonably request. Whether or not the Indemnifying Party elects to defend such Claim or demand Tax Claim, the indemnifying party Indemnified Party shall not settle the claim without the prior consent of the party have no obligation to be indemnified, which consent shall not be unreasonably withhelddo so.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 2 contracts
Sources: Securities Exchange Agreement (League Now Holdings Corp), Securities Exchange Agreement (Swordfish Financial, Inc.)
Conditions of Indemnification. The respective obligations Each party’s agreement to indemnify, defend, and liabilities of Seller and Purchaser (hold harmless under Section 8.4 or 8.5, as applicable, is conditioned upon the "indemnifying party") to the other (the "indemnified party to be indemnified") under Sections 6.01 and 6.02 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required providing written notice to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such any claim, process demand or other legal pleadingaction arising out of the allegedly or actually indemnified matter as soon as reasonably possible, and in any event no later than within thirty (30) days after the indemnified party has actual knowledge of the applicable Claim, (b) permitting the indemnifying party shall have the right to undertake the defense thereof to, if and as elected by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.
(b) In the event that the indemnifying party, by assume control over the 30th day after receipt of notice investigation of, preparation and defense against, and settlement or voluntary disposition of any such claim Claim subject to indemnification, (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to c) assisting the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of as reasonably requested by the indemnifying party and at the indemnifying party's ’s reasonable expense, subject to in the right investigation, preparation, defense, and settlement or voluntary disposition of any such Claim, (d) not compromising, settling, or entering into any voluntary disposition of any such claim, demand or action without the indemnifying party to assume the defense of such claims at any time party’s prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to the contrary notwithstanding, the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnifiedwritten consent, which consent shall not be unreasonably withheld.
, and (de) The furnishing promptly to the indemnifying party copies of all notices and documents (including court papers) received by any indemnified party in connection with the Claim for which indemnification is being sought; provided, however, that, if the party entitled to be indemnified and indemnification hereunder fails to comply with any of the foregoing conditions, the indemnifying party will each cooperate with all reasonable requests only be relieved of its indemnification obligation under this Agreement to the extent materially prejudiced by such failure. In no event may the indemnifying party compromise, settle, or enter into any voluntary disposition of any claim, demand or action subject to indemnification under this Article 8 in any manner that admits material fault or wrongdoing on the part of the otherindemnified party or incurs non-indemnified liability on the part of the indemnified party without the prior written consent of the indemnified party. In the event the indemnifying party assumes control over the investigation of, preparation and defense against, and settlement or voluntary disposition of any Claim, the indemnified party shall have the right, but not the obligation, to be represented by counsel of its own selection and at its own expense with respect thereto.
Appears in 2 contracts
Sources: Development and Supply Agreement (Cempra, Inc.), Development and Supply Agreement (Cempra, Inc.)
Conditions of Indemnification. The respective obligations and liabilities of Seller the Shareholders and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 Section 9.1 and 6.02 hereof Section 9.2 with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgmentposition) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, provided that the party to be indemnified may participate in the defense with counsel of its own choice choice, the fees and expenses of which counsel shall be paid by the party to be indemnified unless (i) the indemnifying party has agreed to pay such fees and expenses, (ii) the indemnifying party has failed to assume the defense of such action or (iii) the named parties to any such action (including any impleaded parties) include both the indemnifying party and the party to be indemnified and the party to be indemnified has been advised by counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the indemnifying party (in which case, if the party to be indemnified informs the indemnifying party in writing that it elects to employ separate counsel at its own expensethe expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action on behalf of the party to be indemnified, it being understood, however, that the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for the party to be indemnified, which firm shall be designated in writing by the party to be indemnified).
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to Notwithstanding the contrary notwithstandingforegoing, the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Boundless Motor Sports Racing Inc), Asset Purchase Agreement (Boundless Motor Sports Racing Inc)
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (a) A party entitled to indemnification hereunder (the "indemnifying partyIndemnified Party") to shall notify the other party or parties liable for such indemnification (the "party to be indemnifiedIndemnifying Party") under Sections 6.01 and 6.02 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by Claim or potential liability for Taxes ("Tax Claim") which the Indemnified Party has determined has given or could give rise to a third party, right of indemnification under this Agreement. Such notice shall be given within a reasonable (taking into account the party to be indemnified nature of the Claim or Tax Claim) period of time after the Indemnified Party has actual knowledge thereof. The Indemnifying Party shall give the indemnifying party satisfy its obligations under this Article 11 within forty days after receipt of subsequent written notice thereof together with a copy from the Indemnified Party if an amount is specified therein, or promptly following receipt of subsequent written notice or notices specifying the amount of such claim, process Claim or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expenseTax Claim additions thereto; provided, however, that for so long as the party Indemnifying Party is in good faith defending a Claim or Tax Claim pursuant to Section 8.3(b) hereof, its obligation to indemnify the Indemnified Party with respect thereto shall be indemnified may participate in suspended (other than with respect to any costs, expenses or other liabilities incurred by the Indemnified Party prior to the assumption of the defense with counsel by the Indemnifying Party). Failure to provide a notice of its own choice and at its own expenseClaim or Tax Claim within the time period referred to above shall not constitute a defense to a Claim or Tax Claim or release the Indemnifying Party from any obligation hereunder to the extent that such failure does not prejudice the position of the Indemnifying Party.
(b) In If the facts giving rise to any such indemnification involve any actual, threatened or possible Claim or demand or Tax Claim by any person not a party to this Agreement against the Indemnified Party, the Indemnifying Party shall be entitled to contest or defend such Claim or demand Tax Claim at its expense and through counsel of its own choosing, which counsel shall be reasonably acceptable to the Indemnified Party, such right to contest or defend shall only apply if the Indemnifying Party gave written notice of its intention to assume the contest and defense of such Claim or demand Tax Claim to the Indemnified Party as soon as practicable, but in no event that the indemnifying party, by the 30th day more than thirty days after receipt of the notice of Claims or Tax Claim, and provided the Indemnified Party with appropriate assurances as to the creditworthiness of the Indemnifying Party, and that the Indemnifying Party will be in a position to pay all fees, expenses and judgments that might arise out of such Claim or demand Tax Claim. The Indemnified Party shall have the obligation to cooperate in the defense of any such claim (orClaim or demand Tax Claim and the right, if earlierat its own expense, to participate in the defense of any Claim or Tax Claim. So long as the Indemnifying Party is defending in good faith any such Claim or demand Tax Claim asserted by a third party against the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claimIndemnified Party, the party to be indemnified will (upon further notice to the indemnifying party) Indemnified Party shall not settle or compromise such Claim or demand Tax Claim. The Indemnifying Party shall have the right to undertake the defense, settle or compromise any such Claim or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to the contrary notwithstanding, the indemnifying party shall not settle any claim demand Tax Claim without the consent of the party Indemnified Party at any time utilizing its own funds to be indemnified unless do so if in connection with such settlement involves only or compromise the payment of money Indemnified Party is fully released by the third party and the claimant provides is paid in full any indemnification amounts due hereunder. The Indemnified Party shall make available to the Indemnifying Party or its agents all records and other materials in the Indemnified Party's possession reasonably required by it for its use in contesting any third party to be indemnified a release from all liability in respect of such claim. If Claim or demand Tax Claim and shall otherwise cooperate, at the settlement expense of the claim involves more than Indemnifying Party, in the payment of moneydefense thereof in such manner as the Indemnifying Party may reasonably request. Whether or not the Indemnifying Party elects to defend such Claim or demand Tax Claim, the indemnifying party Indemnified Party shall not settle the claim without the prior consent of the party have no obligation to be indemnified, which consent shall not be unreasonably withhelddo so.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 2 contracts
Sources: Merger Agreement (Leweandowski Fanny), Merger Agreement (Cirus Telecom Inc)
Conditions of Indemnification. The respective obligations and liabilities of each of Seller and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof Buyer with respect to claims resulting from the assertion of liability Claims made by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the The indemnified party to be indemnified shall give the indemnifying party written prompt notice thereof together with a copy of any such claim, process or other legal pleadingClaim, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.chosen by it;
(b) In the event that If the indemnifying party, by the 30th day within a reasonable time after receipt of notice of any such claim (orClaim, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect fails to defend the indemnified party against which such claimClaim has been asserted, the indemnified party to be indemnified will shall (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim Claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims Claim at any time prior to settlement, compromise or final determination thereof.; and
(c) Anything in this Section 6.03 Article IX to the contrary notwithstanding, (i) if there is a reasonable probability that a Claim may materially and adversely affect the indemnified party other than as a result of money damages or other money payments, the indemnified party shall have the right, at its own cost and expense, to defend, compromise or settle such Claim; provided, however, that if such Claim is settled without the indemnify ing party's consent, the indemnified party shall be deemed to have waived all rights hereunder against the indemnifying party for money damages arising out of such Claim, and (ii) the indemnifying party shall not settle any claim not, without the written consent of the party indemnified party, settle or compromise any Claim or consent to be indemnified unless such settlement involves only the payment entry of money and any judgment which does not include as an unconditional term thereof the giving by the claimant provides or the plaintiff to the indemnified party to be indemnified of a release from all liability in respect of to such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheldClaim.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities of the Seller Group and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof Acquiror Group with respect to claims resulting from the assertion of liability Claims made by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the The indemnified party to be indemnified shall give the indemnifying party written prompt notice thereof together with a copy of any such claim, process or other legal pleadingClaim, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.chosen by it;
(b) In If the event that indemnifying party undertakes the defense of any such Claim, the indemnified party shall, to the best of its ability, assist the indemnifying party, at the expense of the indemnifying party, in the defense of such Claim, and shall promptly send to the indemnifying party, at the expense of the indemnifying party, copies of any documents received by the 30th day indemnified party which relate to such Claim;
(c) If the indemnifying party, within a reasonable time after receipt of notice of any such claim (orClaim, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect fails to defend the indemnified party against which such claimClaim has been asserted, the indemnified party to be indemnified will shall (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim Claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims Claim at any time prior to settlement, compromise or final determination thereof.; and
(cd) Anything in this Section 6.03 Article X to the contrary notwithstanding, (i) if there is a reasonable probability that a Claim may materially and adversely affect the indemnified party other than as a result of money damages or other money payments, the indemnified party shall have the right, at its own cost and expense, to defend, compromise or settle such Claim; and (ii) the indemnifying party shall not settle any claim not, without the written consent of the party indemnified party, settle or compromise any Claim or consent to be indemnified unless such settlement involves only the payment entry of money and any judgment which does not include as an unconditional term thereof the giving by the claimant provides or the plaintiff to the indemnified party to be indemnified a release from all liability in with respect of to such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheldClaim.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Sources: Stock Purchase Agreement (HFS Inc)
Conditions of Indemnification. (a) The respective indemnification obligations and liabilities of Seller and Purchaser any party (in this Article V referred to as the "indemnifying partyINDEMNIFYING PARTY") to the any other party (in this Article V referred to as the "party to be indemnifiedPARTY TO BE INDEMNIFIED") under Sections 6.01 and 6.02 hereof Article V with respect to claims Damages resulting from the assertion of liability or other claims by third parties shall be subject to the following terms and conditions:
(ai) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) With reasonable promptness after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; providedPROVIDED, howeverHOWEVER, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.
(b) In . If the event that indemnifying party undertakes such defense, the indemnified party shall cooperate with the indemnifying party in such defense and make available to the indemnifying party, at such party's expense, all witnesses, pertinent records, materials and information in its possession or under its control relating thereto as is reasonably requested by the 30th day after receipt of notice of any such claim indemnifying party.
(or, if earlier, by ii) If the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), indemnifying party does not elect to defend against such claimclaim or if the indemnifying party fails to take reasonable steps necessary to defend diligently such claim within ten days after receiving written notice to that effect from the party to be indemnified, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party party, to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(ciii) Anything in this Section 6.03 Article V to the contrary notwithstanding, the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.
(db) The In the event that the party to be indemnified asserts the existence of Damages (but excluding Damages resulting from the assertion of liability or other claims by third parties), it shall give written notice to the indemnifying party. Such written notice shall state that it is being given pursuant to this Article V, specify the nature and amount of the Damages asserted and indicate the date on which such assertion shall be deemed accepted and the amount of the Damages deemed valid Damages (such date to be established in accordance with the next sentence). If the indemnifying party, within sixty days after the mailing of notice by the party to be indemnified shall not given written notice to the party to be indemnified announcing its intention to contest such assertion of the party to be indemnified, such assertion shall be deemed accepted and the amount of Damages shall be deemed valid Damages. In the event, however, that the indemnifying party contests the assertion of Damages by giving such written notice to the party to be indemnified within said period, then if the parties hereto, acting in good faith, cannot reach agreement with respect to such Damages within thirty days after such notice, the contested assertion of Damages shall be resolved by a court having jurisdiction in the matter.
(c) The failure to give timely notice in this Section 5.2 will each cooperate with all reasonable requests not affect the rights or obligations of any party hereunder, except and only to the otherextent that, as a result of such failure, any party that was entitled to receive such notice was materially prejudiced as a result of such failure.
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities right of any EGM Indemnitee or any Seller and Purchaser Indemnitee, as the case may be (the any such indemnitee, an "indemnifying partyIndemnitee") ), to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof indemnity with respect to claims resulting from for EGM Damages or Seller Damages under Section 6.1 or 6.2, as the assertion of liability by third parties case may be (any such claim, a "Claim"), shall be subject to the following terms and conditions:
(a) Within 20 days Such Indemnitee shall give the party or parties from which indemnity is sought (any such recipient of any such notice, the "Indemnifying Parties") prompt notice of any Claim asserted against or incurred by such earlier time as might Indemnitee (but in no event later than the date set forth in Section 6.1(a) hereof) and shall specify in reasonable detail the fact alleged to constitute a basis for such Claim. Such Indemnitee shall permit the Indemnifying Parties (at their own expense) to assume the defense of any claim or any litigation resulting therefrom, provided that (i) counsel for the Indemnifying Parties who shall conduct the defense of such claim or litigation shall be required reasonably satisfactory to avoid prejudicing such Indemnitee, and (ii) such Indemnitee may participate in such defense at the indemnifying party's position including expense of such Indemnitee. Except with the prior written consent of such Indemnitee, the Indemnifying Parties, in the defense of any such Claim, shall not consent to entry of any judgment or enter into any settlement that provides for injunctive or other non-monetary relief affecting such Indemnitee. Except with the consent of the Indemnifying Parties, in the defense of any such Claim in which the Indemnifying Parties have assumed the defense, such Indemnitee shall not consent to the entry of a default judgment) after receipt any judgment or enter into any settlement. After notice from the Indemnifying Parties to such Indemnitee of notice their election to assume the defense of commencement of such claim or action, the Indemnifying Parties shall not be liable to such Indemnitee under Sections 6.1, 6.2 or 6.3 for any action evidenced by service of process legal or other legal pleading, or expenses subsequently incurred by such Indemnitee in connection with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives thereof, other than reasonable costs of its own choosing and at its own expenseinvestigation; provided, however, that such Indemnitee shall have the party right to be indemnified may employ separate counsel in any such action and to participate in the defense with thereof, but the fees and expenses for such counsel shall be at the expense of its own choice such Indemnitee unless (x) the employment thereof has been specifically authorized by the Indemnifying Parties or (y) such Indemnitee shall have been advised by counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnifying parties and at its own expensein the reasonable judgment of such counsel it is advisable for such Indemnitees to employ separate counsel.
(b) In the event that within thirty (30) business days after the indemnifying party, by the 30th day after Indemnifying Parties' receipt of an Indemnitee's delivery of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order Claim pursuant to prevent judgment by default in favor of the person asserting such claimSection 6.3(a), does not elect the Indemnifying Parties fail to notify such Indemnitee of their intention to defend against such claim, the party to be indemnified will such Indemnitee shall (upon further notice to the indemnifying partyIndemnifying Parties) have the right to undertake the defense, compromise compromise, settlement or settlement payment in full of such claim on behalf of and Claim for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereofIndemnifying Parties.
(c) Anything in this Section 6.03 to the contrary notwithstanding, the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities of Seller Shareholder and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 7.1 and 6.02 hereof 7.2 with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgmentposition) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, provided that the party to be indemnified may participate in the defense with counsel of its own choice choice, the fees and expenses of which counsel shall be paid by the party to be indemnified unless (i) the indemnifying party has agreed to pay such fees and expenses, (ii) the indemnifying party has failed to assume the defense of such action or (iii) the named parties to any such action (including any impleaded parties) include both the indemnifying party and the party to be indemnified and the party to be indemnified has been advised by counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the indemnifying party (in which case, if the party to be indemnified informs the indemnifying party in writing that it elects to employ separate counsel at its own expensethe expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action on behalf of the party to be indemnified, it being understood, however, that the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for the party to be indemnified, which firm shall be designated in writing by the party to be indemnified).
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to Notwithstanding the contrary notwithstandingforegoing, the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Sources: Asset Purchase Agreement (Boundless Motor Sports Racing Inc)
Conditions of Indemnification. The respective obligations and liabilities of Seller Sellers, on the one hand, and Purchaser the Buyer, on the other hand (the "“indemnifying party") ”), to the other (the "“party to be indemnified"”) under Sections 6.01 7(b) and 6.02 7(c), respectively, hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(ai) Within 20 fifteen (15) days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment’s position) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading; provided, and however, that the failure to give notice shall not affect the right of the party to be indemnified to indemnification hereunder except to the extent that such failure prejudices the ability of the indemnifying party to defend any claim. The indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense, which are reasonably acceptable to the party to be indemnified; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.
(bii) In the event that the indemnifying party, by the 30th thirtieth (30th) day after receipt of notice of any such claim (or, if earlier, by the 10th tenth (10th) day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person Person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's ’s expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(ciii) Anything in this Section 6.03 7(d) to the contrary notwithstanding, the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement (A) involves only the payment of money money, (B) does not involve an injunction or other equitable relief, (C) is not likely to establish a precedent or custom materially adverse to the continuing business interests of the party to be indemnified, and (D) provides for the claimant provides to provide to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than does not satisfy all of the payment of moneyconditions in the preceding sentence, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.
(div) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities of Seller the Company and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof Investor hereunder with respect to claims their respective indemnities pursuant to this Section 12, resulting from the assertion of liability by third parties any Claim shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the The indemnified party to be indemnified shall give prompt written notice to the indemnifying party written notice thereof together with a copy of any Claim which is asserted against, resulting to, imposed upon or incurred by such indemnified party and which may give rise to liability of the indemnifying party pursuant to this Section 12 stating (to the extent known or reasonably anticipated) the nature and basis of such claimClaim and the amount thereof.
(b) The indemnifying party shall engage counsel with respect to any such Claim, process such representation (including the compromise or other legal pleadingsettlement of any Claim) to be undertaken on behalf of the indemnified party, and the indemnified party shall have right to approve such counsel (such approval not to be unreasonably withheld). In the event the indemnifying party elects not to undertake such defense by its own counsel, the indemnifying party shall have give prompt written notice of such election to the right to indemnified party, and the indemnified party will undertake the defense thereof by counsel or other representatives designated by it, at the cost and expense of its own choosing the indemnifying party (such costs and at its own expense; provided, however, that the party expenses of such defense to be advanced by the indemnifying party as incurred by the indemnified may participate in the defense with counsel of its own choice and at its own expenseparty).
(bc) In the event that any Claim shall arise out of a transaction or cover any period or periods wherein the indemnifying partyCompany, by on the 30th day after receipt of notice of any such claim (orone hand, if earlierand the Investor, by on the 10th day preceding the day on which an answer or other pleading must hand, shall each be served in order to prevent judgment by default in favor liable hereunder for part of the person asserting liability or obligation arising therefrom, then the parties shall, each choosing its or his own counsel and bearing its or his own expense, defend such claim)Claim, does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, and no settlement or compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to the contrary notwithstanding, the indemnifying party shall not settle any claim Claim may be made without the joint consent or approval of the each party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, (which consent shall not be unreasonably withheld), except where the respective liabilities and obligations of the parties are clearly allocable or attributable on the basis of objective facts.
(d) The party to be indemnified and the amount which any indemnifying party will each cooperate with all reasonable requests is or may be required to pay any indemnified party pursuant to this Section 12 shall be measured taking into account (i) any income tax savings (and income tax cost attributable to the indemnity payment) actually realized (or occurred) that affect the overall economic impact of the otherlosses to the indemnified party, and (ii) any insurance proceeds actually realized and adverse insurance consequences incurred (such as premium adjustments and other detriments) that affect the overall economic impact of the losses to the indemnified party.
Appears in 1 contract
Sources: Note Purchase Agreement (Doctors Health System Inc)
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser PQS, Probex or Parent, as the case may be (the "indemnifying partyParty") to the other Persons (the "party Party to be indemnified") under Sections 6.01 and 6.02 hereof with respect to claims resulting from the assertion of liability by third parties any claim or demand for indemnification shall be subject to the following terms and conditions:
13.3.1 The Party to be indemnified shall promptly give notice to the indemnifying Party of any claim, whether between the Parties or brought by a third party, specifying both the basis for and the amount of such claim, to the extent specified or otherwise known. If the claim or demand for indemnification relates to a claim, action, suit, or proceeding asserted or filed by a Third Party against the Party to be indemnified (aa "Third-Party Claim"), then such notice shall be given by the Party to be indemnified within twenty (20) Within 20 days of receipt thereof (or such earlier time as might be required to avoid prejudicing the indemnifying partyParty's position including position). The failure of the entry Party to be indemnified to give such notice shall not relieve the indemnifying Party of its obligations hereunder, except to the extent the indemnifying Party is actually prejudiced thereby.
13.3.2 Following receipt of notice from the Party to be indemnified of a default judgmentclaim or demand for indemnification, the indemnifying Party shall have twenty (20) after days to make such investigation of the claim or demand as the indemnifying Party deems necessary or desirable. For the purposes of such investigation, the Party to be indemnified agrees to make available to the indemnifying Party (or its authorized representatives) the information relied upon by the Party to be indemnified to substantiate the claim or demand. If the Party to be indemnified and the indemnifying Party agree at or before the expiration of such twenty (20) day period (or any mutually agreed upon extension thereof) to the validity and amount of such claim or demand, then the indemnifying Party shall immediately pay to the Party to be indemnified the full amount of the claim or demand to the extent that such Party to be indemnified is entitled to indemnification pursuant to this Section 13.3. If the Party to be indemnified and the indemnifying Party do not agree within such period (or any mutually agreed upon extension thereof), then the Party to be indemnified may pursue or exercise any remedies or rights available to it.
13.3.3 After receipt of notice of commencement of any action Third-Party Claim evidenced by service of process or other legal pleading, or with reasonable promptness after the any other assertion in writing of any claim by a third partyThird-Party Claim, the party Party to be indemnified shall give the indemnifying party Party written notice thereof together with a copy of such claim, process process, or other legal pleading, and pleading within the period set forth in the second sentence of Section 13.3.1. The failure of a Party to be indemnified to give the indemnifying party Party such notice shall not relieve the indemnifying Party of its obligations under Section 13.3 except to the extent the indemnifying Party is actually prejudiced thereby. The indemnifying Party shall have the right to undertake the defense thereof defense, compromise, or settlement of the Third-Party Claim, by representatives of its own choosing and at its own expense; providedexpense so long as the indemnifying Party agrees to assume and conduct, howeverand diligently conducts, that such defense (or, if applicable, compromise or settlement). In such event the party Party to be indemnified may participate in the defense defense, compromise, or settlement with counsel of its own choice and at its own expense.
(b) In the event that 13.3.4 If the indemnifying partyParty, by the 30th thirtieth (30th) day after receipt of notice of any such claim (or, if earlier, by the 10th tenth (10th) day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claimplaintiff), does not elect to defend against such claimThird-Party Claim, then the party Party to be indemnified will shall have the right (upon further notice to the indemnifying partyParty) have the right to retain counsel and undertake the defense, compromise compromise, or settlement of such claim Third-Party Claim on behalf of of, and for the account and risk of of, the indemnifying party Party and at the indemnifying partyParty's expense, subject to the right of the indemnifying party Party to assume participate, with its own counsel and at its own expense, in the defense defense, settlement or compromise. If the Party to be indemnified and the indemnifying Party agree at or before the expiration of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything the period set forth in this Section 6.03 13.3.4 (or any mutually agreed upon extension thereof) to the contrary notwithstandingvalidity and amount of such Third-Party Claim, then the indemnifying Party shall immediately pay to the Party to be indemnified the amount so agreed.
13.3.5 If there is a conflict of interests which renders it inappropriate for the same counsel to represent both the indemnifying Party and the Party to be indemnified in defending, compromising, or settling a Third-Party Claim, the indemnifying party Party shall be responsible for paying for separate counsel for the Party to be indemnified. In such event, however, if there is more than one Party to be indemnified, the indemnifying Party shall not settle be responsible for paying for more than one separate counsel (which may be a firm of attorneys) to represent the Parties to be indemnified, regardless of the number of Parties to be indemnified.
13.3.6 The indemnifying Party may compromise, settle, or resolve any claim Third-Party Claim without the consent of the party Party to be indemnified unless if such settlement compromise, settlement, or resolution involves only the payment of money by the indemnifying Party (whether on its own behalf or on behalf of the Party to be indemnified) and the claimant provides to the party Party to be indemnified a release from all liability Liability in respect of such claim. If the settlement of the claim involves more than the payment of moneyOtherwise, the indemnifying party shall Party may not settle compromise, settle, or resolve the claim without the prior written consent of the party Party to be indemnified, which consent shall may not be unreasonably withheld.
(d) 13.3.7 The party Party to be indemnified and the indemnifying party will each Party must cooperate with all reasonable requests of the otherother in the defense of any Third-Party Claim.
13.3.8 Notwithstanding anything to the contrary in this Section 13.3, with respect to an obligation of PQS to indemnify Probex pursuant to Section 13.2.1 above with respect to a PQS Environmental Claim that requires any Remediation, PQS may elect to implement and complete such Remediation. If PQS elects to conduct the Remediation:
(i) PQS, in good faith, will coordinate the schedule of the Remediation with Probex so that disruptions of Probex's operations will be minimized;
(ii) PQS will obtain the prior written approval of Probex, which approval will not be unreasonably withheld, for any consultant or contractor retained by PQS to investigate, design or implement the Remediation;
(iii) PQS will conduct the Remediation in compliance with all applicable federal, state and local laws and regulations and as directed by the appropriate Governmental Body; and
(iv) PQS will not agree to or select any Remediation that imposes any material obligation on Probex, including, without limitation, the obligation to sign manifests or obtain permits, without the prior written consent of the Probex, which consent shall not be reasonably withheld.
(v) During the period in which PQS is conducting a Remediation pursuant to this Section 13.3.8, Probex shall provide PQS and its consultants and contractors reasonable access to the affected property for the purpose of conducting activities related to the Remediation, including where necessary the use of heavy
Appears in 1 contract
Sources: Services Agreement (Probex Corp)
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser Each party indemnified pursuant to Sections 6.02 or 6.03 hereof (an "indemnified party") agrees to give prompt notice to the party required to indemnify such indemnified party (an "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof with respect to claims resulting from of the assertion of liability by third parties shall be subject to any claim, or the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any suit, action evidenced or proceeding, whether brought against such indemnified party or brought by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the such indemnified party to be indemnified shall give against the indemnifying party written notice thereof together with (each a copy "Claim"), in respect of which indemnity may be sought by such claim, process indemnified party under Section 6.02 or 6.03 hereof or in respect of which such indemnified party may seek any other legal pleading, and remedy against the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expenseunder this Agreement; provided, however, that the omission so to promptly notify the indemnifying party with respect to be a Claim brought against such indemnified party will not relieve the indemnifying party from any liability which it may participate in have to such indemnified party under Section 6.02 or 6.03 hereof unless such failure materially prejudices the indemnifying party with respect to the defense with counsel of its own choice and at its own expense.
(b) In the event that such Claim. If any indemnified party shall seek indemnity under Section 6.02 or 6.03 hereof, the indemnifying party, by in the 30th day after receipt case of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend a Claim brought against such claimindemnified party, the party shall be entitled to be indemnified will (upon further notice participate therein and, to the indemnifying extent that it wishes, to assume and direct the defense and settlement thereof with counsel reasonably satisfactory to such indemnified party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of . After notice from the indemnifying party to an indemnified party of its election to assume and direct the defense and settlement of a Claim brought against such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to the contrary notwithstandingindemnified party, the indemnifying party shall not settle be liable to such indemnified party (or any claim without of its affiliates) under Section 6.02 or 6.03 hereof for any legal or other expenses subsequently incurred by such indemnified party in connection with the consent defense thereof other than reasonable costs of investigation undertaken at the request of the indemnifying party; except that such indemnified party shall have the right to employ counsel to represent such party if, in the reasonable judgment of such party, it is advisable for such party to be indemnified unless such settlement involves only represented by separate counsel, and in that event the payment of money fees and the claimant provides to the party to be indemnified a release from all liability in respect expenses of such claimseparate counsel shall be paid by such indemnified party. If Notwithstanding the settlement foregoing provisions of the claim involves more than the payment of moneythis Section 6.04, the indemnifying party shall not settle the claim not, without the prior written consent of the an indemnified party to be indemnified, (which consent shall not be unreasonably withheld.
withheld or delayed), effect any settlement of any pending or threatened proceeding in respect of which such indemnified party is, or with reasonable foreseeability, could have been a party and indemnity could have been sought hereunder by such indemnified party for a Claim brought against such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability arising out of such proceeding (d) The party provided that, whether or not such a release is required to be indemnified and obtained, the indemnifying party will each cooperate shall remain liable to such indemnified party in accordance with all reasonable requests of Section 6.02 or 6.03 hereof, as applicable, in the otherevent that a Claim is subsequently brought against such indemnified party).
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser the party responsible for indemnifying hereunder (sometimes referred to herein as "the "indemnifying party") ), and the party entitled to indemnification hereunder (sometimes referred to herein as "the other (the "party to be indemnified" or ") the indemnified party"), under Sections 6.01 6.02, 6.03, 6.04 and 6.02 6.05, 6.06 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleadingpleading (provided that failure so to notify the indemnifying party of the assertion of a claim within such period shall not affect its indemnity obligation hereunder except as and to the extent that such failure shall adversely affect the defense of such claim), and the indemnifying party shall have the right obligation to undertake the defense thereof by representatives of its own choosing and at its own expensereasonably satisfactory to the indemnified party; provided, however, that the indemnified party to be indemnified may retain separate co-counsel at its sole cost and expense and participate in the defense with counsel of its own choice and at its own expense.the third party claim;
(b) In the event that the indemnifying party, by the 30th thirtieth day after receipt of notice of any such claim (or, if earlier, by the 10th tenth day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against assume the defense of such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims claim at any time prior to settlement, compromise or final determination thereof.;
(c) Anything Other than as set forth in this Section 6.03 to the contrary notwithstanding6.07(b), the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without except with the prior written consent of the party to be indemnified, which no indemnifying party, in the defense of such claim or litigation, shall consent to entry of any judgment or order, interim or otherwise, or enter into any settlement that provides for injunctive or other nonmonetary relief affecting the party to be indemnified or that does not include as an unconditional term thereof the giving by each claimant or plaintiff to such party to be indemnified of a release from all liability with respect to such claim or litigation. In the event that the party to be indemnified shall in good faith determine that the representation of both the indemnifying and indemnified parties would be inappropriate due to a conflict of interest arising from the availability to the indemnified party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the indemnifying party in respect of such claim or any litigation relating thereto, the party to be indemnified shall have the right (subject to applicable rules of professional conduct) at all times to take over and assume control over the defense, settlement, negotiations or litigation relating to such claim at the sole cost of the indemnifying party; provided, however, that if the party to be indemnified does so take over and assume control, the party to be indemnified may consent to the entry of any judgment or enter into any settlement with respect to any third party claim in any manner it may deem appropriate and, in the event that the indemnifying party did not undertake the defense of such claim due to a conflict of interest, such consent to entry of judgment or entry into any settlement will be subject to the approval, not to be unreasonably withheld., of the indemnifying party; and
(d) The In connection with any such indemnification, the party to be indemnified and the indemnifying party will each shall cooperate with all reasonable requests of the otherindemnifying party.
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities of Seller Shareholders and Purchaser (the "indemnifying party") to the other any person to be indemnified (the "party person to be indemnified") under Sections 6.01 8.1 and 6.02 8.2 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgmentposition) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party person to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party person to be indemnified may participate in the defense with counsel of its own choice and at its own expenseexpense and, provided further, that the failure of the person to be indemnified to give timely notice shall not affect the right to indemnification hereunder except to the extent (and then only to the extent) the indemnifying party proves actual damages caused by such failure.
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party person to be indemnified will (upon further notice to the indemnifying party) have the right right, but not the obligation, to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 8.3 to the contrary notwithstanding, the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party person to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party person to be indemnified, which consent shall not be unreasonably withheld.
(d) The party person to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Conditions of Indemnification. The respective obligations and ----------------------------- liabilities of Seller NOSP and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof Company with respect to claims Claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a1) Within 20 days The party hereto seeking indemnification (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including "Indemnitee") will give the entry of a default judgmentother party hereto (the "Indemnitor") after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness such Claim reasonably promptly after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written Indemnitee receives notice thereof together with a copy of such claim, process or other legal pleadingthereof, and the indemnifying party shall have the right to Indemnitor will undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expensechoosing.
(b2) In the event that the indemnifying partyIndemnitor, by the 30th day within ten (10) business days after receipt of notice of any such claim (orClaim, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect fails to defend against such claimClaim, the party to be indemnified Indemnitee will (upon further giving written notice to the indemnifying partyIndemnitor) have the right right, but not the obligation, to undertake the defense, compromise or settlement of such claim Claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expenseIndemnitor, subject to the right of the indemnifying party Indemnitor to assume the defense of such claims Claim at any time prior to settlement, compromise or final determination thereof.
(c3) Anything in this Section 6.03 to the contrary notwithstanding, if there is a reasonable probability that a Claim may materially and adversely affect the indemnifying party Indemnitee other than as a result of money damages or other money payments, the Indemnitee shall not have the right to defend, compromise or settle any claim such Claim, in good faith, on behalf of and for the account and risk of the Indemnitor. However, the Indemnitee shall not, without the Indemnitor's written consent, settle or compromise any Claim or consent to entry of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a any judgment which does not include an unconditional release from all liability in respect of such claimClaim, other than liability specified in the settlement, from the claimant or plaintiff to the Indemnitor and the Indemnitee. If To the settlement of the claim involves more than the payment of moneygreatest extent reasonably possible, the indemnifying party parties shall not settle the claim without the prior consent of the party attempt to be indemnified, which consent shall not be unreasonably withheldobtain general releases from such plaintiff or claimant.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Conditions of Indemnification. The respective Stockholders' obligations to indemnify and liabilities of Seller and Purchaser (hold the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof with respect to claims resulting from the assertion of liability by third parties shall be Republic Group harmless against Indemnifiable Damages are subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of If Republic has a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleadingreasonable good faith basis for asserting a claim for Indemnifiable Damages, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified it shall give the indemnifying party prompt written notice thereof together to the Escrow Agent, with a copy to the Stockholders' Representative, of such claim, process or other legal pleading, claim (an "Indemnification Notice"). The Indemnification Notice shall briefly set forth the basis of the claim and the indemnifying party shall have amount thereof (or, if not then determinable by Republic, a reasonable good faith estimate of the right amount thereof) in reasonable detail to undertake permit the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party Stockholders' Representative to be indemnified may participate in the defense with counsel of its own choice and at its own expenseevaluate such claim.
(b) In Promptly after any determination of a claim in accordance with the event that the indemnifying partyprovisions of paragraph (c) below, by the 30th day and promptly after any receipt of notice of the determination of a claim in accordance with the provisions of Section 10.3 hereof (which notice shall be accompanied by a copy of any agreement, final court order, judgment or decree evidencing such claim (ordetermination), the Escrow Agent shall deliver to Republic, free and clear of any interest of the Stockholders therein, Escrowed Consideration in an amount equal to the amount, if earlierany, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk payable to Republic pursuant to such determination. Such amount shall be charged against each Stockholder's pro rata portion of the indemnifying party and at Escrowed Consideration. If the indemnifying party's expense, subject to the right amount of the indemnifying party to assume Escrowed Consideration then held by the defense Escrow Agent is less than the amount, if any, of such claims at claim so payable, the Escrow Agent shall deliver to Republic all of the Escrowed Consideration then held by it, free and clear of any time prior to settlement, compromise or final determination thereofinterest of the Stockholders therein.
(c) Anything The determination of a claim asserted hereunder shall be made as follows:
(i) The claim shall be deemed to have resulted in this Section 6.03 a determination in favor of Republic, in an amount equal to the contrary notwithstandingamount of such claim estimated by Republic pursuant to paragraph (a) above, on the 30th day after Republic gives the Escrow Agent and the Stockholders' Representative the Indemnification Notice with respect to such claim in accordance with paragraph (a) above, unless prior thereto the Escrow Agent has received notice from the Stockholders' Representative (with a copy to Republic) that the Stockholders have a reasonable good faith basis for disputing the claim (a "Dispute Notice").
(ii) If a claim asserted hereunder is disputed by the Stockholders' Representative in the manner provided in clause (i) above, the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect determination of such claim. If claim shall be made in accordance with the provisions for the settlement of disputes contained in Section 10.3 hereof and shall be evidenced by the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party documentation referred to be indemnified, which consent shall not be unreasonably withheldin such Section.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (the "indemnifying party") HFG to the other (the "party to be indemnified") KMG under Sections 6.01 and 6.02 hereof this SECTION 8 with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgmentposition) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified KMG shall give the indemnifying party HFG written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party HFG shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, provided that the party to be indemnified KMG may participate in the defense with counsel of its own choice choice, the fees and expenses of which counsel shall be paid by KMG unless (i) HFG has agreed to pay such fees and expenses, (ii) HFG has failed to assume the defense of such action or (iii) the named parties to any such action (including any impleaded parties) include both HFG and KMG and KMG has been advised by counsel that there may be one or more legal defenses available to it that are different from or additional to those available to HFG (in which case, if KMG informs HFG in writing that it elects to employ separate counsel at its own expensethe expense of HFG, HFG shall not have the right to assume the defense of such action on behalf of KMG, it being understood, however, that HFG shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for KMG, which firm shall be designated in writing by KMG).
(b) In the event that the indemnifying partyHFG, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified KMG will (upon further notice to the indemnifying partyHFG) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party HFG and at the indemnifying partyHFG's expense, subject to the right of the indemnifying party HFG to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to Notwithstanding the contrary notwithstandingforegoing, the indemnifying party HFG shall not settle any claim without the consent of the party to be indemnified KMG unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified KMG a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party HFG shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheldKMG.
(d) The party to be indemnified KMG and the indemnifying party HFG will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Sources: Stock Exchange Agreement (KMG B Inc)
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser Each party indemnified pursuant to Section 5.02 or 5.03 hereof (the an "indemnifying partyINDEMNIFIED PARTY") agrees to give prompt notice to the other party required to indemnify such indemnified party (the an "party to be indemnifiedINDEMNIFYING PARTY") of the assertion of any claim, or the commencement of any suit, action or proceeding, whether brought against such indemnified party or brought by such indemnified party against the indemnifying party (each a "CLAIM"), in respect of which indemnity may be sought by such indemnified party under Sections 6.01 and 6.02 Section 5.02 or 5.03 hereof or in respect of which such indemnified party may seek any other remedy against the indemnifying party under this Agreement; PROVIDED, however, that the omission so to promptly notify the indemnifying party with respect to claims resulting a Claim brought against such indemnified party will not relieve the indemnifying party from any liability which it may have to such indemnified party under Section 5.02 or 5.03 hereof unless such failure materially prejudices the assertion of liability by third parties shall be subject indemnifying party with respect to the following terms and conditions:
(a) Within 20 days (defense of such Claim. If any indemnified party shall seek indemnity under Section 5.02 or such earlier time as might be required to avoid prejudicing 5.03 hereof, the indemnifying party's position including , in the entry case of a default judgment) after receipt Claim brought against such indemnified party, shall be entitled to participate therein and, to the extent that it wishes, to assume and direct the defense and settlement thereof with counsel reasonably satisfactory to such indemnified party. After notice from the indemnifying party to an indemnified party of notice its election to assume and direct the defense and settlement of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third Claim brought against such indemnified party, the indemnifying party shall not be liable to be such indemnified shall give party (or any of its affiliates) under Section 5.02 or 5.03 hereof for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation undertaken at the request of the indemnifying party written notice thereof together with a copy of party; except that such claim, process or other legal pleading, and the indemnifying indemnified party shall have the right to undertake employ counsel to represent such party if, in the defense thereof by representatives reasonable judgment of its own choosing and at its own expense; providedsuch party, however, that the it is advisable for such party to be indemnified may participate represented by separate counsel, and in that event the defense with counsel of its own choice fees and at its own expense.
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement expenses of such claim on behalf separate counsel shall be paid by such indemnified party. Notwithstanding the foregoing provisions of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to the contrary notwithstanding5.04, the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of moneynot, the indemnifying party shall not settle the claim without the prior written consent of the an indemnified party to be indemnified, (which consent shall not be unreasonably withheld.
withheld or delayed), effect any settlement of any pending or threatened proceeding in respect of which such indemnified party is, or with reasonable foreseeability, could have been a party and indemnity could have been sought hereunder by such indemnified party for a Claim brought against such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability arising out of such proceeding (d) The party PROVIDED that, whether or not such a release is required to be indemnified and obtained, the indemnifying party will each cooperate shall remain liable to such indemnified party in accordance with all reasonable requests of Section 5.02 or 5.03 hereof, as applicable, in the otherevent that a Claim is subsequently brought against such indemnified party).
Appears in 1 contract
Sources: Deferred Securities Purchase Agreement (Carrols Corp)
Conditions of Indemnification. The respective obligations and liabilities of the Shareholders and the Companies to indemnify the Buyer Group and the Buyer to indemnify the Seller and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") Group under Sections 6.01 and 6.02 Section 7.2 hereof with respect to claims Buyer Claims and Seller Claims, respectively, resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the The indemnified party to be indemnified shall will give the indemnifying party written prompt notice thereof together with a copy of any such claim, process or other legal pleading, and the indemnifying party shall have the right to will undertake the defense thereof by representatives of its own choosing and at its own expense; providedreasonably satisfactory to the indemnified party, however, provided that failure to provide such notice will not relieve the indemnifying party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.
(b) In the event that obligations hereunder unless it is actually prejudiced by such failure to receive such notice. If the indemnifying party, by the 30th day within ten (10) days after receipt of notice of any such claim (orclaim, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect fails to defend against such claim, the indemnified party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(cb) Anything in this Section 6.03 7.4 to the contrary notwithstanding, (i) an indemnified party shall have the right, at its own cost and expense, to defend, compromise or settle or participate in the defense, compromise or settlement of such claim, (ii) the indemnifying party shall not settle any claim not, without the written consent of the party indemnified party, settle or compromise any claim or consent to be indemnified unless such settlement involves only the payment entry of money and any judgment (x) which does not include as an unconditional term thereof the giving by the claimant provides or the plaintiff to the indemnified party to be indemnified a release from all liability in respect of such claim. If claim or (y) as a result of which injunctive or other equitable relief would be imposed against the indemnified party, and (iii) the indemnified party shall have the right to control the defense or settlement of that portion of any claim which seeks an order, injunction or other equitable relief against the indemnified party which, if successful, could materially interfere with the business, operations, assets, financial condition or prospects of the indemnified party; provided, however, that in connection with the defense or settlement of the portion of such claim involves more than which seeks equitable relief, the payment of money, indemnified party shall cooperate with the indemnifying party shall not settle and use its reasonable best efforts to limit the claim without the prior consent liability of the party to be indemnified, which consent shall not be unreasonably withheld.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests for the damages portion of the othersuch claim.
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities of the Seller and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof Buyer hereunder with respect to claims their respective indemnities pursuant to this SECTION 12, resulting from the assertion of liability by third parties any Claim shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the The indemnified party to be indemnified shall give prompt written notice to the indemnifying party written notice thereof together with a copy of any Claim which is asserted against, resulting to, imposed upon or incurred by such claim, process or other legal pleading, indemnified party and which may give rise to liability of the indemnifying party shall have pursuant to this SECTION 12, stating (to the right to undertake extent known or reasonably anticipated) the defense thereof by nature and basis of such Claim and the amount thereof.
(b) The indemnified party may engage counsel or representatives of its own choosing and at its own expense; provided, however, that the party with respect to be indemnified may participate in the defense with counsel of its own choice and at its own expense.
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim Claim, such representation (or, if earlier, by including the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim any Claim) to be undertaken on behalf of and for the account and risk of the indemnifying party. In the event the indemnified party elects not to undertake such defense by its own representatives, the indemnified party shall give prompt written notice of such election to the indemnifying party, and at the indemnifying party will undertake the defense thereof by counsel or other representatives designated by it whom the indemnified party determines in writing to be satisfactory for such purposes. The consent of the indemnified party to the indemnifying party's expense, subject to the right choice of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise counsel or final determination thereof.
(c) Anything in this Section 6.03 to the contrary notwithstanding, the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent other representative shall not be unreasonably withheld.
(dc) The party to be indemnified In the event that any Claim shall arise out of a transaction or cover any period or periods wherein the Seller, on the one hand, and the indemnifying party will Buyer, on the other hand, shall each cooperate with all reasonable requests be liable hereunder for part of the otherliability or obligation arising therefrom, then the parties shall, each choosing its or his own counsel and bearing its or his own expense, defend such Claim, and no settlement or compromise of such Claim may be made without the joint consent or approval of the Buyer and the Seller (which consent shall not be unreasonably withheld), except where the respective liabilities and obligations of the Buyer and the Seller are clearly allocable or attributable on the basis of objective facts.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Classic Vacation Group Inc)
Conditions of Indemnification. The respective Parties’ indemnification obligations and liabilities of Seller and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof with respect to claims resulting from the assertion of liability by third parties shall be this Section 17 are subject to the following terms and conditions:
Party seeking indemnification (ai) Within 20 days (or such earlier time as might be required to avoid prejudicing notifying the other, indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion Party promptly in writing of any claim by an Illumina Infringement Claim or Third Party Claim, as the case may be, (provided that a third party, delay in providing shall not relieve the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives Party of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice indemnification obligations except to the extent it is prejudiced by such delay) (ii) giving indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of Party exclusive control and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume authority over the defense of such claims at Claim, (iii) not admitting infringement of any time Intellectual Property Right without prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to the contrary notwithstanding, the indemnifying party shall not settle any claim without the written consent of the party indemnifying Party, (iv) not entering into any settlement or compromise of any such action without the indemnifying Party’s prior written consent not to be indemnified unless such settlement involves only the payment of money unreasonably withheld, conditioned, or Supply Agreement delayed, and the claimant provides (v) providing all reasonable assistance to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, indemnifying Party that the indemnifying party shall Party requests and ensuring that its officers, directors, representatives and employees and other indemnitees likewise provide assistance (provided that indemnifying Party reimburses the indemnified Party(ies) for its/their reasonable out-of-pocket expenses incurred in providing such assistance). An indemnifying Party will not enter into or otherwise consent to an adverse judgment or order, or make any admission as to liability or fault that would adversely affect the indemnified Party, or settle the claim a dispute without the prior written consent of the party to be indemnifiedindemnified Party, which consent shall not to be unreasonably withheld, conditioned, or delayed.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Sources: Supply, Service, and Support Agreement (Foundation Medicine, Inc.)
Conditions of Indemnification. The respective obligations and liabilities of HMS and the Seller and Purchaser Cza▇▇▇▇▇▇▇, ▇on▇▇▇▇▇ ▇▇d the Buyer (the "indemnifying party") to the other Buyer Indemnified Parties and the Seller Indemnified Parties, respectively (the "party to be indemnified") ), under Sections 6.01 and 6.02 Section 6.03 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, or, if applicable, a summary of such assertion, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.choosing;
(b) In in the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th tenth day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.on
(c) Anything anything in this Section 6.03 6.05 to the contrary notwithstandingnotwithstanding (i) if there is a reasonable probability that a claim may materially and adversely affect the indemnifying party other than as a result of money damages or other money payments, the indemnifying party shall not have the right, at its own cost and expense, to compromise or settle any claim such claim, but (ii) the indemnifying party shall not, without the prior written consent of the party to be indemnified unless such settlement involves only indemnified, settle or compromise any claim or consent to the payment entry of money and any judgment which does not include as an unconditional term thereof the giving by the claimant provides or the plaintiff to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.; and
(d) The party to be in connection with any such indemnification, the indemnified and the indemnifying party will each cooperate with in all reasonable requests of the otherindemnifying party.
Appears in 1 contract
Sources: Asset Purchase Agreement (Health Management Systems Inc)
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof Buyer with respect to claims its indemnities pursuant to this Article XIII, resulting from the any claim or other assertion of liability by third parties (hereinafter called collectively, “Third Party Claims”), shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of Seller must give Buyer written notice of commencement any such Claim within ninety (90) days after Seller receives notice thereof, but failure to give notice in such period shall only relieve Buyer of any action evidenced by service of process or other legal pleading, or with reasonable promptness after its indemnity obligations if and to the assertion in writing of any claim by a third party, extent the party to be indemnified shall give delay materially prejudices the indemnifying party written notice thereof together with a copy defense of such claim, process or other legal pleading, and the indemnifying party Claim.
(b) Buyer shall have the right to undertake the defense thereof promptly undertake, without conditions or reservation of rights, by counsel or other representatives of its own choosing and at its own expense; providedreasonably acceptable to Seller, however, that the party to be indemnified may participate in the defense with counsel of its own choice such Claim at Buyer’s cost and at its own expenserisk.
(bc) In the event that the indemnifying partyBuyer shall elect not to undertake such defense, by the 30th day or within a reasonable time after receipt of notice of any such claim (orClaim from Seller shall fail to defend, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will Seller (upon further written notice to the indemnifying partyBuyer) shall have the right on behalf of and for the account and risk of Buyer to undertake the defense, compromise or settlement of such claim on behalf Claim by counsel or other representatives of Seller’s own choosing. In such event, Buyer shall pay to Seller, in addition to any other sums required to be paid hereunder, the costs and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of expenses incurred by Seller in connection with such claims at any time prior to settlementdefense, compromise or final determination thereofsettlement as and when such costs and expenses are so incurred.
(cd) Anything in this Section 6.03 13.03 to the contrary notwithstanding, (i) if there is a reasonable probability that a Claim may materially and adversely affect Seller, Seller shall have the indemnifying party shall not settle any claim without right, at its own cost and expense, to participate in the consent defense, compromise or settlement of the party Claim, (ii) Buyer shall not, without Seller’s written consent (such consent not to be indemnified unless such settlement involves only unreasonably withheld, conditioned or delayed), settle or compromise any Claim or consent to entry of any judgment which does not include as an unconditional term thereof the payment of money and giving by the claimant provides or the plaintiff to the party to be indemnified Seller a release from all liability in respect of such claim. If Claim in a form reasonably satisfactory to Seller, (iii) in the settlement event that Buyer undertakes defense of any Claim, Seller, by counsel or other representative of its own choosing and at its sole cost and expense, shall have the right to consult with Buyer and its counsel or other representatives concerning such Claim, and ▇▇▇▇▇ and Seller and their respective counsel or other representatives shall reasonably cooperate with respect to such Claim, and (iv) in the event that Buyer undertakes defense of any Claim, Buyer shall have an obligation to keep Seller informed of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent status of the party to be indemnified, which consent shall not be unreasonably withheld.
(d) The party to be indemnified defense of such Claim and the indemnifying party will each cooperate furnish Seller with all reasonable requests documents, instruments and information that Seller shall reasonably request in connection therewith. Notwithstanding the foregoing, in the event Buyer undertakes the defense of any Claim, Seller shall have the otherright to employ its own counsel at Buyer’s expense if Seller shall have reasonably concluded and specifically notified Buyer that there may be one or more specific defenses available to it which are different from or additional to those available to Buyer or there otherwise exists a conflict of interest between Seller and Buyer.
Appears in 1 contract
Sources: Asset Purchase and Sale Agreement
Conditions of Indemnification. The respective obligations and liabilities of Seller Sellers, on the one hand, and Purchaser Buyer, on the other hand (herein sometimes called the "“indemnifying party") ”), to the other (herein sometimes called the "“party to be indemnified"”) under Sections 6.01 and 6.02 Article X hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 within 60 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third partyparty (whether or not any Loss from such claim is within the Basket), the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleadingpleading (provided that failure to so notify the indemnifying party of the assertion of a claim within such period shall not affect its indemnity obligation hereunder except as and to the extent that the indemnifying party demonstrates that it has been prejudiced by such delay), and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and choosing; in any event, the indemnified party will be entitled to participate in at its own cost, but not control, the defense of such claim with counsel of its choice at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.;
(b) In in the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th tenth day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims claim at any time prior to settlement, compromise or final determination thereof.;
(c) Anything in this Section 6.03 to if there is a reasonable probability that a claim may materially and adversely affect the contrary notwithstandingindemnified party other than as a result of money damages or other money payments, such claim shall not be settled or compromised without the prior written consent of both the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides indemnified party, in such case such consent not to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.;
(d) The party to be in connection with any such indemnification, the indemnified and the indemnifying party will each cooperate with in all reasonable requests of the otherindemnifying party; and
(e) neither party hereto will be liable to the other hereunder for any punitive or exemplary or consequential damages of any nature relating to any claim for which either such party may be entitled to recover under this Agreement; provided, however, that this limitation shall not apply to any indemnification claim by any party to this Agreement based (i) on a third party claim which includes, as part of that third party claim, a claim for consequential damages, or (ii) on a claim which alleges willful misconduct or fraud.
Appears in 1 contract
Sources: Membership Interest and Stock Purchase Agreement (Gulfmark Offshore Inc)
Conditions of Indemnification. The respective obligations and liabilities of Seller the Corporation and Securityholders and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 10.01 and 6.02 hereof 10.02 with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgmentposition) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, provided that the party to be indemnified may participate in the defense with counsel of its own choice choice, the fees and expenses of which counsel shall be paid by the party to be indemnified unless (i) the indemnifying party has agreed to pay such fees and expenses, (ii) the indemnifying party has failed to assume the defense of such action or (iii) the named parties to any such action (including any impleaded parties) include both the indemnifying party and the party to be indemnified and the party to be indemnified has been advised by counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the indemnifying party (in which case, if the party to be indemnified informs the indemnifying party in writing that it elects to employ separate counsel at its own expense.the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action on behalf of the party to be indemnified, it
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to Notwithstanding the contrary notwithstandingforegoing, the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Sources: Securities Purchase Agreement (American Homestar Corp)
Conditions of Indemnification. The respective obligations and liabilities of Seller the Shareholders, on the one hand, and Purchaser the Purchaser, on the other hand (herein sometimes called the "indemnifying partyINDEMNIFYING PARTY") ), to the other or any other Indemnified Person or Shareholder Indemnified Person (herein sometimes called the "party to be indemnifiedPARTY TO BE INDEMNIFIED" or the "INDEMNIFIED PARTY") under Sections 6.01 and 6.02 Section 8.03 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 within 30 days (or, if earlier, by the fifteenth day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the Person asserting such earlier time as might be required claim, unless an extension is available to avoid prejudicing the indemnifying party's position including the entry of a default judgmentextend such deadline) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleadingpleading (provided that failure so to notify the indemnifying party of the assertion of a claim within such period shall not affect its indemnity obligation hereunder except as and to the extent that such failure shall adversely affect the defense of such claim), and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.choosing;
(b) In in the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th tenth day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person Person asserting such claim, unless an extension is available to extend such deadline), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims claim at any time prior to settlement, compromise or final determination thereof.;
(c) Anything anything in this Section 6.03 8.04 to the contrary notwithstanding, (i) if there is a reasonable probability that a claim may materially and adversely affect the indemnified party other than as a result of money damages or other money payments, the indemnified party shall have the right, at its own cost and expense, to compromise or settle such claim, but (ii) the indemnified party shall not, without the prior written consent of the indemnifying party, settle or compromise any claim or content to the entry of any judgment which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.; and
(d) The party to be in connection with any such indemnification, the indemnified and the indemnifying party will each cooperate with in all reasonable requests of the otherindemnifying party. In the event that the "indemnifying party" or the "party to be indemnified" as described in this Section 8.04 is the Shareholders as a group, then any notices required to be given to or by, and all other actions or decisions required to be taken or made by, such "indemnifying party" or the "party to be indemnified" as provided in this Section 8.04, may be given to or by, or may be taken or made by, the Shareholder Representative (as defined in the Escrow Agreement).
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities of Seller the Purchasers, on the one hand, and Purchaser the Company, on the other hand (the "indemnifying party") ), to the other (the "party to be indemnified") under Sections 6.01 and 6.02 Section 5.02 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.choosing;
(b) In in the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlierearli- er, by the 10th tenth day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims claim at any time prior to settlement, compromise or final determination thereof., provided that the indemnifying party shall be given at least 15 days prior written notice of the effectiveness of any such proposed settlement or compromise;
(c) Anything anything in this Section 6.03 5.03 to the contrary notwithstandingnotwithstanding (i) if there is a reasonable probability that a claim may materially and adversely affect the indemnifying party other than as a result of money damages or other money payments, the indemnifying party shall not have the right, at its own cost and expense, to compromise or settle any claim such claim, but (ii) the indemnifying party shall not, without the prior written consent of the party to be indemnified unless such settlement involves only indemnified, settle or compromise any claim or consent to the payment entry of money and any judgment which does not include as an unconditional term thereof the giving by the claimant provides or the plaintiff to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.; and
(d) The party to be in connection with any such indemnification, the indemnified and the indemnifying party will each cooperate with in all reasonable requests of the otherindemnifying party.
Appears in 1 contract
Sources: Series C Convertible Preferred Stock Purchase Agreement (Aurora Electronics Inc)
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (the "“indemnifying party"”) to the other (the "“party to be indemnified"”) under Sections 6.01 9.1 and 6.02 9.2, respectively, hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment’s position) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's ’s expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 9.3 to the contrary notwithstanding, the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Conditions of Indemnification. The respective indemnity obligations and liabilities of Seller and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections Section 6.01 and 6.02 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgmentposition) after receipt of notice of commencement of any action evidenced by service of process process, or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party of a matter for which a party (the"indemnified party") is entitled to indemnification under Section 6.01, the indemnified party to be indemnified shall give the other party (the "indemnifying party party") written notice thereof together with a copy of such claim, process process, or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the indemnified party to be indemnified may participate in the defense with counsel of its own choice and at its own expense. Notwithstanding the foregoing, if, in the reasonable opinion of counsel to the indemnified party (which opinion must be furnished in writing to the indemnified party), a potential conflict of interest shall exist as between the indemnifying party and the indemnified party such that it would not be in the best interest of the indemnified party to be represented by the same counsel as the indemnifying party, the indemnified party shall be entitled to retain separate counsel, all at the expense of the indemnified party; provided, however, that in no 8 event shall the indemnifying party be required to pay for more than one counsel for the indemnified party in any lawsuit, action, proceeding, or claim (including any related lawsuits, actions, proceedings, or claims).
(b) In the event that If the indemnifying party, by the 30th 20th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to notify in writing the indemnified party that the indemnifying party shall defend against such claim, then the indemnified party to be indemnified will may (upon further notice to the indemnifying party) have the right to undertake the defense, compromise compromise, or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims claim at any time prior to settlement, compromise compromise, or final determination thereof.
(c) Anything in this Section 6.03 6.02 to the contrary notwithstanding, the indemnifying party shall not settle any claim without the consent of the indemnified party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the indemnified party to be indemnified a full and complete release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, then the indemnifying party shall not settle the claim without the prior written consent of the party to be indemnifiedindemnified party, which consent shall not be unreasonably withheld.
(d) The party to be indemnified Each of Ultrak and the indemnifying party ADT will each cooperate with all reasonable requests of the otherother pursuant to Section 6.01 and this Section 6.02.
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities of Seller the Securityholders, Parent and Purchaser Merger Sub (the "“indemnifying party"”) to the other (the "“party to be indemnified"”) under Sections 6.01 Section 8.1 and 6.02 hereof Section 8.2 with respect to claims resulting from the assertion of liability by third parties (“Third Party Claims”) shall be subject to the following terms and conditions:
(a) Within 20 days (or provided that failure to deliver notice within such earlier time as might 20 day period will not affect the indemnification rights of the party to be required to avoid prejudicing indemnified unless the indemnifying party's ’s position including the entry is materially prejudiced as a result of a default judgmentsuch failure) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, provided that the party to be indemnified may participate in the defense with counsel of its own choice choice, the fees and expenses of which counsel shall be paid by the party to be indemnified unless (i) the indemnifying party has agreed to pay such fees and expenses, (ii) the indemnifying party has failed to assume the defense of such action or (iii) the named parties to any such action (including any impleaded parties) include both the indemnifying party and the party to be indemnified and the party to be indemnified has been advised by counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the indemnifying party (in which case, if the party to be indemnified informs the indemnifying party in writing that it elects to employ separate counsel at its own expensethe expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action on behalf of the party to be indemnified, it being understood, however, that the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for the party to be indemnified, which firm shall be designated in writing by the party to be indemnified).
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person Person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's ’s expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to Notwithstanding the contrary notwithstandingforegoing, the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities of Seller Members and Purchaser (the "“indemnifying party"”) to the other (the "“party to be indemnified"”) under Sections 6.01 7.1 and 6.02 hereof 7.2 with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment’s position) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, provided that the party to be indemnified may participate in the defense with counsel of its own choice choice, the fees and expenses of which counsel shall be paid by the party to be indemnified unless (i) the indemnifying party has agreed to pay such fees and expenses, (ii) the indemnifying party has failed to assume the defense of such action or (iii) the named parties to any such action (including any impleaded parties) include both the indemnifying party and the party to be indemnified and the party to be indemnified has been advised by counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the indemnifying party (in which case, if the party to be indemnified informs the indemnifying party in writing that it elects to employ separate counsel at its own expensethe expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action on behalf of the party to be indemnified, it being understood, however, that the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for the party to be indemnified, which firm shall be designated in writing by the party to be indemnified).
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's ’s expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to Notwithstanding the contrary notwithstandingforegoing, the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Sources: Membership Interests Purchase Agreement (Boundless Motor Sports Racing Inc)
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (a) A party entitled to indemnification hereunder (the "indemnifying partyIndemnified Party") to shall notify the other party or parties liable for such indemnification (the "party to be indemnifiedIndemnified Party") under Sections 6.01 and 6.02 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by Claim or potential liability for Taxes (“Tax Claim”) which the Indemnified Party has determined has given or could give rise to a third party, right of indemnification under this Agreement. Such notice shall be given within a reasonable (taking into account the party to be indemnified nature of the Claim or Tax Claim) period of time after the Indemnified Party has actual knowledge thereof. The Indemnifying Party shall give the indemnifying party satisfy its obligations under this Article 7 within forty days after receipt of subsequent written notice thereof together with a copy from the Indemnified Party if an amount is specified therein, or promptly following receipt of subsequent written notice or notices specifying the amount of such claim, process Claim or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expenseTax Claim additions thereto; provided, however, that for so long as the party Indemnifying Party is in good faith defending a Claim or Tax Claim pursuant to Section 7.3(b) hereof, its obligation to indemnify the Indemnified Party with respect thereto shall be indemnified may participate in suspended (other than with respect to any costs, expenses or other liabilities incurred by the Indemnified Party prior to the assumption of the defense with counsel by the Indemnifying Party). Failure to provide a notice of its own choice and at its own expenseClaim or Tax Claim within the time period referred to above shall not constitute a defense to a Claim or Tax Claim or release the Indemnifying Party from any obligation hereunder to the extent that such failure does not prejudice the position of the Indemnifying Party.
(b) In If the facts giving rise to any such indemnification involve any actual, threatened or possible Claim or demand or Tax Claim by any person not a party to this Agreement against the Indemnified Party, the Indemnifying Party shall be entitled to contest or defend such Claim or demand Tax Claim at its expense and through counsel of its own choosing, which counsel shall be reasonably acceptable to the Indemnified Party, such right to contest or defend shall only apply if the Indemnifying Party gave written notice of its intention to assume the contest and defense of such Claim or demand Tax Claim to the Indemnified Party as soon as practicable, but in no event that the indemnifying party, by the 30th day more than thirty days after receipt of the notice of Claims or Tax Claim, and provided the Indemnified Party with appropriate assurances as to the creditworthiness of the Indemnifying Party, and that the Indemnifying Party will be in a position to pay all fees, expenses and judgments that might arise out of such Claim or demand Tax Claim. The Indemnified Party shall have the obligation to cooperate in the defense of any such claim (orClaim or demand Tax Claim and the right, if earlierat its own expense, to participate in the defense of any Claim or Tax Claim. So long as the Indemnifying Party is defending in good faith any such Claim or demand Tax Claim asserted by a third party against the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claimIndemnified Party, the party to be indemnified will (upon further notice to the indemnifying party) Indemnified Party shall not settle or compromise such Claim or demand Tax Claim. The Indemnifying Party shall have the right to undertake the defense, settle or compromise any such Claim or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to the contrary notwithstanding, the indemnifying party shall not settle any claim demand Tax Claim without the consent of the party Indemnified Party at any time utilizing its own funds to be indemnified unless do so if in connection with such settlement involves only or compromise the payment of money Indemnified Party is fully released by the third party and the claimant provides is paid in full any indemnification amounts due hereunder. The Indemnified Party shall make available to the Indemnifying Party or its agents all records and other materials in the Indemnified Party’s possession reasonably required by it for its use in contesting any third party to be indemnified a release from all liability in respect of such claim. If Claim or demand Tax Claim and shall otherwise cooperate, at the settlement expense of the claim involves more than Indemnifying Party, in the payment of moneydefense thereof in such manner as the Indemnifying Party may reasonably request. Whether or not the Indemnifying Party elects to defend such Claim or demand Tax Claim, the indemnifying party Indemnified Party shall not settle the claim without the prior consent of the party have no obligation to be indemnified, which consent shall not be unreasonably withhelddo so.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities of Seller the Seller, on the one hand, and Purchaser (of the "indemnifying party") to Buyer, on the other (hand, to indemnify the "party to be indemnified") under Sections 6.01 and 6.02 hereof Buyer Group or the Seller Group, as the case may be, with respect to claims resulting from the assertion of liability made by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the The indemnified party to be indemnified shall will give the indemnifying party written prompt notice thereof together with a copy of any such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof thereof, at the indemnifying party's expense, by representatives of its own choosing chosen by the indemnifying party and at its own expense; provided, however, that reasonably acceptable to the party to be indemnified may participate in the defense with counsel of its own choice and at its own expenseparty.
(b) In the event that If the indemnifying party, by the 30th day within thirty (30) days (unless applicable Laws provide for a shorter time period for a required response) after receipt of notice of any such claim (orclaim, if earlier, by fails to assume the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor defense of the person asserting indemnified party against which such claim), does not elect to defend against such claimclaim has been asserted, the indemnified party to be indemnified will shall (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and party, at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims claim at any time prior to settlement, compromise or final determination thereof.
(c) Anything If, in the opinion of the indemnified party's legal counsel, a conflict of interest with respect to any claim exists between the indemnified party against which a claim has been asserted and the indemnifying party, then such indemnified party shall have the right to retain its own counsel with respect to such claim; provided that the reasonable fees and expenses of one such counsel shall be at the expense of the indemnifying party.
(d) Any provision of this Section 6.03 Article X to the contrary notwithstanding, (i) if there is a reasonable probability that a claim may materially and adversely affect the indemnified party other than as a result of money damages or other money payments, the indemnified party shall have the right, at its own cost and expense, to defend, compromise or settle such claim; provided, however, that if such claim is settled without the indemnifying party's consent, the indemnified party shall be deemed to have waived all rights hereunder against the indemnifying party for money damages arising out of such claim, and (ii) the indemnifying party shall not settle any claim not, without the written consent of the party indemnified party, settle or compromise any claim or consent to be indemnified unless such settlement involves only the payment entry of money and any judgment which does not include as an unconditional term thereof the giving by the claimant provides or the plaintiff to the indemnified party to be indemnified of a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Sources: Asset Purchase Agreement (American Safety Razor Co)
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof with respect to parties hereunder regarding claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required The indemnified party hereby agrees to avoid prejudicing promptly notify the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion party in writing of any claim claims asserted against, imposed upon or incurred by a third the indemnified party, the party to be indemnified shall give and the indemnifying party written notice hereby agrees to undertake the defense thereof together with a copy of such claim, process or other legal pleading, and by representatives chosen by the indemnifying party. The indemnifying party shall have the right to undertake control and handle the defense thereof by representatives conduct of its own choosing and at its own expense; providedany litigation, howeverto the extent such proceedings could result in a claim against the indemnifying party, provided that such conduct does not have a material adverse effect on the indemnified party. The indemnified party hereby agrees to be indemnified may participate cooperate with the indemnifying party in the defense with counsel of its own choice and at its own expense.any such claim or proceeding. The indemnifying party hereby agrees to keep the indemnified party informed as to the progress of any such claim or proceeding; and
(b) In the event that the indemnifying party, within fifteen days after notification by the 30th day after receipt of notice indemnified party of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, fails to defend, control or handle such matter, the indemnified party to be indemnified will (shall have the right, upon further notice written notification to the indemnifying party) have the right , to undertake the defensedefend, compromise or settlement of such claim settle the same on behalf of and for the account and at the risk of the indemnifying party party, to defend, compromise or settle the same on behalf of and for the account of and at the risk of the indemnifying party's expense. In such event, subject the indemnifying party hereby agrees to advance and pay all costs and reasonable attorneys' fees with respect to such indemnification and to give full cooperation to the indemnified party; subject, however, to the right of to the indemnifying party to assume the such defense of such claims at any time prior to final settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to the contrary notwithstanding, the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof each Contributing Company hereunder with respect to claims their respective indemnities pursuant to this SECTION 8, resulting from the assertion of liability by third parties any Claim shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the The indemnified party to be indemnified shall give prompt written notice to the indemnifying party written notice thereof together with a copy of any Claim which is asserted against, resulting to, imposed upon or incurred by such indemnified party and which may give rise to liability of the indemnifying party pursuant to this SECTION 8, stating (to the extent known or reasonably anticipated) the nature and basis of such claimClaim and the amount thereof.
(b) The indemnifying party shall promptly and timely engage counsel for representation with respect to any such Claim, process such representation (including the compromise or other legal pleadingsettlement of any Claim) to be undertaken on behalf of the indemnified party, and the indemnifying indemnified party shall have the right to approve such counsel (such approval not to be unreasonably withheld). In the event the indemnifying party elects not to undertake the defense of such Claim by its own counsel, the indemnifying party shall give prompt written notice of such election to the indemnified party, and the indemnified party will undertake the defense thereof by counsel or other representatives designated by it, at the cost and expense of its own choosing the indemnifying party (such costs and at its own expense; provided, however, that the party expenses of such defense to be advanced by the indemnifying party as incurred by the indemnified may participate in the defense with counsel of its own choice and at its own expenseparty).
(bc) In the event that with respect to any Claim Newco and Newco Sub, on the indemnifying partyone hand, by and the 30th day after receipt of notice of any such claim (orContributing Companies, if earlieron the other hand, by the 10th day preceding the day on which an answer are liable or other pleading must reasonably likely to be served in order to prevent judgment by default in favor held liable for part of the person asserting liability or obligation arising therefrom, then the parties shall, each choosing its or his own counsel and bearing its or his own expense, defend such claim)Claim, does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, and no settlement or compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to the contrary notwithstanding, the indemnifying party shall not settle any claim Claim may be made without the joint consent or approval of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, parties (which consent consents shall not be unreasonably withheld).
(d) The party to be indemnified and the amount which any indemnifying party will each cooperate with all reasonable requests is or may be required to pay any indemnified party pursuant to this SECTION 8 shall be measured taking into account (i) any income tax savings (and income tax cost attributable to the indemnity payment) actually realized (or occurred) that affect the overall economic impact of the other.losses to the indemnified party, and
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (the "indemnifying party"a) to the other (the "In order for a party to be indemnifiedentitled to any indemnification provided for under this Agreement arising out of a claim made by any person against the indemnified party (a ") under Sections 6.01 and 6.02 hereof with respect to claims resulting from Third Party Claim"), the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within indemnified party must within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third partyThird Party Claim, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleadingpleading (provided that failure so to notify the indemnifying party of the assertion of a claim within such period shall not affect its indemnity obligation hereunder except as and to the extent that such failure shall adversely affect the defense of such claim), and and, subject to paragraph (c) below, the indemnifying party shall have the right to undertake the defense thereof by representatives counsel of its own choosing (unless the indemnifying party is also a party to such proceeding and at its own expensethe indemnified party determines in good faith that joint representation would be inappropriate); provided, however, that such counsel is not reasonably objected to by the party to be indemnified may participate in the defense with counsel of its own choice and at its own expenseparty.
(b) In the event that the indemnifying party, by the 30th 20th day after receipt of notice of any such claim Third Party Claim (or, if earlier, by the 10th tenth day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claimThird Party Claim), does not elect to defend against such claim, the indemnified party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, it being understood that the indemnifying party shall control such defense.
(d) If the indemnifying party assumes the defense of a Third Party Claim, (i) no compromise or settlement of such Third Party Claim may be effected by the indemnifying party without the indemnified party's consent unless (A) there is no finding or admission of any violation of law or any violation of the rights of any person and no effect on any other claims that may be made against the indemnified party and (B) the sole relief provided is monetary damages that are paid in full by the indemnifying party and (ii) the indemnified party will have no liability with respect to any compromise or settlement of such Third Party Claim effected without its consent.
(e) Anything in this Section 6.03 to the contrary notwithstanding, the indemnifying party shall not settle be entitled to assume the defense of any Third Party Claim (and shall be liable for the fees and expenses of counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim without the consent for money damages (if such equitable relief or other relief portion of the party to Third Party Claim can be indemnified unless such settlement involves only the payment of so separated from that for money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of moneydamages, the indemnifying party shall not settle be entitled to assume the claim without the prior consent defense of the party portion relating to be indemnified, which consent shall not be unreasonably withheldmoney damages).
(df) The party to be In connection with any such indemnification, the indemnified and the indemnifying party will each cooperate with in all reasonable requests of the otherindemnifying party.
Appears in 1 contract
Sources: Stock Purchase Agreement (Health Management Systems Inc)
Conditions of Indemnification. The respective obligations and liabilities of Seller the Stockholders, on the one hand, and Purchaser Parent, on the other hand (herein sometimes called the "“indemnifying party") ”), to the other (herein sometimes called the "“party to be indemnified"” or the “indemnified party”) under Sections 6.01 and 6.02 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 within 30 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleadingpleading (provided that failure so to notify the indemnifying party of the assertion of a claim within such period shall not affect its indemnity obligation hereunder except as and to the extent that such failure shall adversely affect the defense of such claim), and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.choosing;
(b) In in the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th tenth day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person Person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims claim at any time prior to settlement, compromise or final determination thereof.;
(c) Anything anything in this Section 6.03 9.04 to the contrary notwithstanding, (i) if there is a reasonable probability that a claim may materially and adversely affect the indemnified party other than as a result of money damages or other money payments, the indemnified party shall have the right, at its own cost and expense, to compromise or settle such claim, but (ii) the indemnified party shall not, without the prior written consent of the indemnifying party, settle or compromise any claim or consent to the entry of any judgment which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.; and
(d) The party to be in connection with any such indemnification, the indemnified and the indemnifying party will each cooperate with in all reasonable requests of the otherindemnifying party. In the event that the “indemnifying party” or the “party to be indemnified” as described in this Section 9.04 is the Stockholders as a group, then any notices required to be given to or by, and all other actions or decisions required to be taken or made by, such “indemnifying party” or the “party to be indemnified” as provided in this Section 9.04, may be given to or by, or may be taken or made by, the Stockholders’ Representative.
Appears in 1 contract
Conditions of Indemnification. The Except with respect to any claim for Taxes which shall be governed by Section 5.06, the respective obligations and liabilities of Seller the Stockholders, on the one hand, and Purchaser the Parent, on the other hand (herein sometimes called the "“indemnifying party") ”), to the other (herein sometimes called the "“party to be indemnified"” or the “indemnified party”) under Sections 6.01 and 6.02 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 within 30 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleadingpleading (provided that failure so to notify the indemnifying party of the assertion of a claim within such period shall not affect its indemnity obligation hereunder except as and to the extent that such failure shall adversely affect the defense of such claim), and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.choosing;
(b) In in the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th tenth day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person Person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims claim at any time prior to settlement, compromise or final determination thereof.;
(c) Anything anything in this Section 6.03 8.04 to the contrary notwithstanding, (i) if there is a reasonable probability that a claim may materially and adversely affect the indemnified party other than as a result of money damages or other money payments, the indemnified party shall have the right, at its own cost and expense, to compromise or settle such claim, but (ii) the indemnified party shall not, without the prior written consent of the indemnifying party, settle or compromise any claim or consent to the entry of any judgment which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.;
(d) The any rights of the indemnified party under this Article VIII based on the breach of a representation, warranty or covenant or based on the failure of such representation or warranty to be true as of the date hereof or the Closing Date shall not be diminished or otherwise affected in any way as a result of the existence of such indemnified and party’s Knowledge of such breach or untruth as of the indemnifying date hereof or as of the Closing Date, regardless of whether such Knowledge exists as a result of the indemnified party’s investigation or as a result of disclosure by the Company (or any other Person), unless such disclosures were set forth in this Agreement or in any applicable schedules hereto; and
(e) in connection with any such indemnification, the indemnified party will each cooperate with in all reasonable requests of the otherindemnifying party. In the event that the “indemnifying party” or the “party to be indemnified” as described in this Section 8.04 is the Stockholders as a group, then any notices required to be given to or by, and all other actions or decisions required to be taken or made by, such “indemnifying party” or the “party to be indemnified” as provided in this Section 8.04, may be given to or by, or may be taken or made by, the Stockholders’ Representative.
Appears in 1 contract
Sources: Merger Agreement (Liveperson Inc)
Conditions of Indemnification. The respective obligations and liabilities of Seller the Eligible Stockholders, Parent and Purchaser Merger Sub (the "indemnifying party") to the other (the "party 25 to be indemnified") under Sections 6.01 8.1 and 6.02 hereof 8.2 with respect to claims resulting from the assertion of liability by third parties ("Third Party Claims") shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgmentposition) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, provided that the party to be indemnified may participate in the defense with counsel of its own choice choice, the fees and expenses of which counsel shall be paid by the party to be indemnified unless (i) the indemnifying party has agreed to pay such fees and expenses, (ii) the indemnifying party has failed to assume the defense of such action or (iii) the named parties to any such action (including any impleaded parties) include both the indemnifying party and the party to be indemnified and the party to be indemnified has been advised by counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the indemnifying party (in which case, if the party to be indemnified informs the indemnifying party in writing that it elects to employ separate counsel at its own expensethe expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action on behalf of the party to be indemnified, it being understood, however, that the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for the party to be indemnified, which firm shall be designated in writing by the party to be indemnified).
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to Notwithstanding the contrary notwithstandingforegoing, the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities of Seller the Selling Entities and Purchaser (the "indemnifying partyINDEMNIFYING PARTY") to the other (the "party to be indemnifiedINDEMNIFIED PARTY") under for Damages pursuant to Sections 6.01 10.01(a) and 6.02 10.02(a) hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 twenty (20) days (or such earlier time as might be required to avoid prejudicing the indemnifying partyIndemnifying Party's position including the entry of a default judgmentposition) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified Indemnified Party shall give the indemnifying party Indemnifying Party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party Indemnifying Party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified Indemnified Party may participate in the defense with counsel of its own choice and at its own expense.
(b) In the event that the indemnifying partyIndemnifying Party, by the 30th thirtieth (30th) day after receipt of notice of any such claim (or, if earlier, by the 10th tenth (10th) day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified Indemnified Party will (upon further notice to the indemnifying partyIndemnifying Party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party Indemnifying Party and at the indemnifying partyIndemnifying Party's expense, subject to the right of the indemnifying party Indemnifying Party to assume the defense of such claims claim at any time prior to settlement, compromise or final determination thereofthereof upon reimbursement to the Indemnified Party of all costs and expenses incurred by the Indemnified Party in conjunction with such defense to that date.
(c) Anything in this Section 6.03 to the contrary 10.07 notwithstanding, the indemnifying party Indemnifying Party shall not settle any claim without the consent of the party to be indemnified Indemnified Party unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified Indemnified Party a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party Indemnifying Party shall not settle the claim without the prior consent of the party to be indemnifiedIndemnified Party, which consent shall not be unreasonably withheld.
(d) The party to be indemnified Indemnified Party and the indemnifying party Indemnifying Party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Conditions of Indemnification. (a) The respective obligations and liabilities of Seller and Purchaser (the "an indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 Section 9.2 hereof with respect to claims resulting from the assertion of liability Purchaser Claims or Seller Claims made by third parties shall be subject to the following terms and conditions:
(ai) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the indemnified party to be indemnified shall will give the indemnifying party written notice thereof together with a copy notification of such claim, process any Purchaser Claim or other legal pleadingSeller Claim made by third parties, and the indemnifying party shall have the right right, so long as it acts with reasonable diligence to defend such claim, to undertake the defense thereof by counsel and other representatives chosen by it in each case reasonably acceptable to the indemnified party;
(ii) in the event the indemnifying party assumes the defense of its own choosing a claim, the indemnified party shall have the right to employ counsel separate from counsel employed by the indemnifying party in any such action and to participate therein, but the fees and expenses of such counsel employed by the indemnified party shall be at its own expense; provided, however, that unless (A) the indemnified party is required to be indemnified may participate retain separate counsel due to a conflict of interest with the indemnifying party or (B) the indemnifying party fails to act with reasonable diligence in the defense with counsel of its own choice and at its own expense.defending such claim;
(biii) In the event that if the indemnifying party, by the 30th day within twenty (20) Business Days after receipt of notice of any such claim (orPurchaser Claim or Seller Claim, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served fails to agree in order to prevent judgment by default in favor of the person asserting such claim), does not elect writing to defend the indemnified party against which such claimPurchaser Claim or Seller Claim has been asserted or thereafter fails to reasonably defend such party, the indemnified party to be indemnified will shall (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim Purchaser Claim or Seller Claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, (subject to the right of the indemnifying party thereafter to assume such defense in accordance with this Section 9.3); provided that the indemnified party shall not, without the written consent of the indemnifying party, settle or -------- compromise any Purchaser Claim or Seller Claim, as the case may be, or consent to the entry of any judgment which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the indemnifying party a release from any and all liability or obligation in respect to such Purchaser Claim or Seller Claim, as the case may be;
(iv) no claim shall be settled without the indemnified party's prior written consent, which consent shall not be unreasonably withheld or delayed, unless the settlement involves only the payment of monetary consideration by the indemnifying party and includes an unconditional release of the indemnified party; and
(v) whether or not an indemnifying party chooses to defend a claim, all the parties hereto shall cooperate in the defense of or prosecution thereof and shall furnish such claims at any time prior to settlementrecords, compromise or final determination thereofinformation and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith.
(cb) Anything in this Section 6.03 9.3 to the contrary notwithstanding, (i) if there is a reasonable probability that a Purchaser Claim or a Seller Claim may materially and adversely affect the indemnified party other than as a result of money damages or other money payments, the indemnified party shall have the right, at its own cost and expense, to defend, compromise or settle such Purchaser Claim or Seller Claim; provided, however, that if such Purchaser Claim or Seller Claim is settled without the indemnifying party's consent (which consent shall not be unreasonably withheld, delayed or conditioned), the indemnified party shall be deemed to have waived all rights hereunder against the indemnifying party for money damages arising out of such Purchaser Claim or Seller Claim, and (ii) with respect to any Purchaser Claims or Seller Claims relating to Taxes, the indemnifying party shall not settle or compromise any claim Purchaser Claim or Seller Claim or enter into any closing or other final agreement with any taxing authority without the written consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheldparty.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser or Purchaser, as the case may be (the "indemnifying partyParty") to the other Persons (the "party Party to be indemnified") under Sections 6.01 and 6.02 hereof with respect to claims resulting from the assertion of liability by third parties any claim or demand for indemnification shall be subject to the following terms and conditions:
(a) Within 20 The Party to be indemnified shall promptly give notice to the indemnifying Party of any claim, whether between the Parties or brought by a third party, specifying both the basis for and the amount of such claim, to the extent specified or otherwise known. If the claim or demand for indemnification relates to a claim, action, suit, or proceeding asserted or filed by a Third Party against the Party to be indemnified (a "Third-Party Claim"), then such notice shall be given by the Party to be indemnified within twenty (20) days of receipt thereof (or such earlier time as might be required to avoid prejudicing the indemnifying partyParty's position including position). The failure of the entry Party to be indemnified to give such notice shall not relieve the indemnifying Party of its obligations hereunder, except to the extent the indemnifying Party is actually prejudiced thereby.
(b) Following receipt of notice from the Party to be indemnified of a default judgmentclaim or demand for indemnification, the indemnifying Party shall have twenty (20) after days to make such investigation of the claim or demand as the indemnifying Party deems necessary or desirable. For the purposes of such investigation, the Party to be indemnified agrees to make available to the indemnifying Party (or its authorized representatives) the information relied upon by the Party to be indemnified to substantiate the claim or demand. If the Party to be indemnified and the indemnifying Party agree at or before the expiration of such twenty (20) day period (or any mutually agreed upon extension thereof) to the validity and amount of such claim or demand, then the indemnifying Party shall immediately pay to the Party to be indemnified the full amount of the claim or demand to the extent that such Party to be indemnified is entitled to indemnification pursuant to this Section 9.3. If the Party to be indemnified and the indemnifying Party do not agree within such period (or any mutually agreed upon extension thereof), then the Party to be indemnified may pursue or exercise any remedies or rights available to it.
(c) After receipt of notice of commencement of any action Third-Party Claim evidenced by service of process or other legal pleading, or with reasonable promptness after the any other assertion in writing of any claim by a third partyThird-Party Claim, the party Party to be indemnified shall give the indemnifying party Party written notice thereof together with a copy of such claim, process process, or other legal pleading, and pleading within the period set forth in the second sentence of Section 9.3 (a). The failure of a Party to be indemnified to give the indemnifying party Party such notice shall not relieve the indemnifying Party of its obligations under Section 9.3 except to the extent the indemnifying Party is actually prejudiced thereby. The indemnifying Party shall have the right to undertake the defense thereof defense, compromise, or settlement of the Third-Party Claim, by representatives of its own choosing and at its own expense; providedexpense so long as the indemnifying Party agrees to assume and conduct, howeverand diligently conducts, that such defense (or, if applicable, compromise or settlement). In such event the party Party to be indemnified may participate in the defense defense, compromise, or settlement with counsel of its own choice and at its own expense.
(bd) In the event that If the indemnifying partyParty, by the 30th thirtieth (30th) day after receipt of notice of any such claim (or, if earlier, by the 10th tenth (10th) day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claimplaintiff), does not elect to defend against such claimThird-Party Claim, then the party Party to be indemnified will shall have the right (upon further notice to the indemnifying partyParty) have the right to retain counsel and undertake the defense, compromise compromise, or settlement of such claim Third-Party Claim on behalf of of, and for the account and risk of of, the indemnifying party Party and at the indemnifying partyParty's expense, subject to the right of the indemnifying party Party to assume participate, with its own counsel and at its own expense, in the defense defense, settlement, or compromise. If the Party to be indemnified and the indemnifying Party agree at or before the expiration of the period set forth in this Section 9.3(d) (or any mutually agreed upon extension thereof) to the validity and amount of such claims at any time prior Third-Party Claim, then the indemnifying Party shall immediately pay to settlement, compromise or final determination thereofthe Party to be indemnified the amount so agreed.
(ce) Anything If there is a conflict of interests which renders it inappropriate for the same counsel to represent both the indemnifying Party and the Party to be indemnified in this Section 6.03 to the contrary notwithstandingdefending, compromising, or settling a Third-Party Claim, the indemnifying party Party shall be responsible for paying for separate counsel for the Party to be indemnified. In such event, however, if there is more than one Party to be indemnified, the indemnifying Party shall not settle be responsible for paying for more than one separate counsel (which may be a firm of attorneys) to represent the Parties to be indemnified, regardless of the number of Parties to be indemnified.
(f) The indemnifying Party may compromise, settle, or resolve any claim Third-Party Claim without the consent of the party Party to be indemnified unless if such settlement compromise, settlement, or resolution involves only the payment of money by the indemnifying Party (whether on its own behalf or on behalf of the Party to be indemnified) and the claimant provides to the party Party to be indemnified a release from all liability Liability in respect of such claim. If the settlement of the claim involves more than the payment of moneyOtherwise, the indemnifying party shall Party may not settle compromise, settle, or resolve the claim without the prior written consent of the party Party to be indemnified, which consent shall may not be unreasonably withheld.
(dg) The party Party to be indemnified and the indemnifying party will each Party must cooperate with all reasonable requests of the other in the defense of any Third-Party Claim.
(h) Notwithstanding anything to the contrary in this Section 9.3, with respect to an obligation of Seller to indemnify Purchaser pursuant to Section 9.2(a) above with respect to any Environmental Claim that requires any removal, remediation, response, clean up or other corrective action ("Remediation"), Seller may elect to implement and complete such Remediation. If Seller elects to conduct the Remediation:
(i) Seller, in good faith, will coordinate the schedule of the Remediation with Purchaser so that disruptions of Purchaser's operations will be minimized;
(ii) Seller will obtain the prior written approval of Purchaser, which approval will not be unreasonably withheld, for any consultant or contractor retained by Seller to investigate, design or implement the Remediation;
(iii) Seller will conduct the Remediation in compliance with all applicable federal, state and local laws and regulations and as directed by the appropriate Governmental Body; and
(iv) Seller will not agree to or select any Remediation that imposes any material obligation on Purchaser, including, without limitation, the obligation to sign manifests or obtain permits, without the prior written consent of the Purchaser, which consent shall not be reasonably withheld.
(v) During the period in which Seller is conduction a Remediation pursuant to this Section 9.3(c), Purchaser shall provide Seller and its consultants and contractors reasonable access to the affected property for the purpose of conducting activities related to the Remediation, including where necessary the use of heavy equipment. Any such access shall be subject to reasonable restrictions imposed by Purchaser, including, without limitation, restrictions related to worker safety. Seller shall expeditiously remove from the property all drill cuttings, soil, debris or liquids generated from or in connection with the Remediation and shall restore the property and any existing structures or equipment removed or damaged in the course of the Remediation to a condition substantially the same as the condition that existed immediately prior to the Remediation. Seller or their consultants and contractors shall provide Purchaser at least five (5) business days' notice of the activities to be conducted on the property, which notice may be in the form of a schedule of activities.
(vi) Seller and Purchaser agree that any Remediation shall meet all requirements of the Governmental Body or Bodies directing the Remediation and shall not materially impede or increase the cost of Purchaser's business operations on the affected property. Purchaser acknowledges that the Remediation may be a "risk-based" Remediation pursuant to, and consistent with applicable federal, state and local laws and regulations, which may require the establishment of certain restrictions or conditions affecting the property on which the Remediation is being conducted. Purchaser agrees not to object to any such "risk-based" Remediation unless Purchaser's agreement will, in the good faith judgment of Purchaser, expose Purchaser to liability to third parties.
(vii) Seller shall not take any action or make any communication which has a material effect on the resolution or outcome of any Environmental Claim which could lead to the filing of an Environmental Claim against Purchaser, without providing at least five (5) business days advance notice (unless otherwise required by law) to Purchaser. Any material breach of this obligation shall relieve Purchaser of Liabilities under this Agreement with respect to the applicable Environmental Claim to the extent Purchaser has been prejudiced by the lack of timely and adequate notice. This notification requirement shall not apply to communications which are part of or relate to a judicial or administrative proceeding in which the Parties are litigating claims against each other.
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities of Seller the Stockholders under paragraph (a) of Section 9.02 to Parent and Purchaser the Company, on the one hand, and of Parent to the Stockholders under paragraph (b) of Section 9.02, on the other hand (herein sometimes called the "indemnifying partyINDEMNIFYING PARTY") ), to the other (herein sometimes called the "party to be indemnifiedPARTY TO BE INDEMNIFIED") under Sections 6.01 and 6.02 Section 9.02 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleadingpleading (provided that failure so to notify the indemnifying party of the assertion of a claim within such period shall not affect its indemnity obligation hereunder except as and to the extent that such failure shall adversely affect the defense of such claim), and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expensechoosing.
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th tenth day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims claim at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to Except with the contrary notwithstanding, the indemnifying party shall not settle any claim without the prior written consent of the indemnified party, no indemnifying party, in the defense of such claim or litigation, shall consent to entry of any judgment or order, interim or otherwise, or enter into any settlement that provides for injunctive or other nonmonetary relief affecting the indemnified party or that does not include as an unconditional term thereof the giving by each claimant or plaintiff to be such indemnified unless such settlement involves only the payment party of money and the claimant provides to the party to be indemnified a release from all liability with respect to such claim or litigation. In the event that the indemnified party shall in good faith determine that the indemnified party may have available to it one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the indemnifying party in respect of such claim. If claim or any litigation relating thereto, the settlement indemnified party shall have the right at all times to take over and assume control over the defense, settlement, negotiations or litigation relating to such claim at the sole cost of the claim involves more than indemnifying party; provided, however, that if the payment of moneyindemnified party does so take over and assume control, the indemnifying indemnified party shall not settle the such claim or litigation without the prior written consent of the party indemnifying party, such consent not to be indemnified, which consent shall not be unreasonably withheld.
(d) The In connection with any such indemnification, the indemnified party to be indemnified and the indemnifying party will each shall cooperate with in all reasonable requests of the otherindemnifying party. Any notices required to given to or by, and all other actions or decisions required to be taken or made by, the Stockholders as the "indemnifying party" as provided in this Section 9.03, shall be given to or by, or shall be taken or made by, the individual or entity appointed as the Stockholder Agent in accordance with the Representation Agreement and any action so taken shall bind all Stockholders.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Savvis Communications Corp)
Conditions of Indemnification. The respective obligations and liabilities of Seller the Company and the Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 16.1 and 6.02 16.2 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 within 10 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgmentposition) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process process, or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.
(b) In in the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the other indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything anything in this Section 6.03 16.3 to the contrary notwithstanding, the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Sources: Investment Agreement (Airport Systems International Inc)
Conditions of Indemnification. The respective obligations and liabilities of Seller Seller, on the one hand, and Purchaser Buyer, on the other hand (the "indemnifying party") ), to the other (the "party to be indemnified") under Sections 6.01 6.02 and 6.02 6.03 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.choosing;
(b) In in the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th tenth day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims claim at any time prior to settlement, compromise or final determination thereof., provided that the indemnifying party shall be given at least 15 days prior written notice to the effectiveness of any such proposed settlement or compromise;
(c) Anything anything in this Section 6.03 6.04 to the contrary notwithstandingnotwithstanding (i) if there is a reasonable probability that a claim may materially and adversely affect the indemnifying party other than as a result of money damages or other money payments, the indemnifying party shall not have the right, at its own cost and expense, to compromise or settle any claim such claim, but (ii) the indemnifying party shall not, without the prior written consent of the party to be indemnified unless such settlement involves only indemnified, settle or compromise any claim or consent to the payment entry of money and any judgment which does not include as an unconditional term thereof the giving by the claimant provides or the plaintiff to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.; and
(d) The party to be in connection with any such indemnification, the indemnified and the indemnifying party will each cooperate with in all reasonable requests of the otherindemnifying party.
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (indemnification provided for herein is conditioned upon the "indemnifying party") Party seeking such indemnification promptly providing written notice to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof with respect to claims resulting from the assertion indemnifying Party of liability by third parties shall be subject a claim that comes to the following terms indemnified Party’s attention. The indemnifying Party will be responsible to assume the defense and conditions:
control of such matter (awith counsel of its choice, which must be approved in writing in advance by the Party being indemnified) Within 20 days (or such earlier time as might be required to avoid prejudicing at the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own Party’s expense; provided, however, that the party to indemnifying Party will not settle any such matter without the prior written consent of the indemnified Party, which consent may be withheld in the indemnified may participate Party’s sole discretion. The Parties agree that the indemnifying Party (and its legal counsel) will keep the indemnified Party fully and completely advised of the status and progress of any such matter. The indemnified Party will reasonably cooperate with the indemnifying Party in the defense with counsel of its own choice and at its own expense.
(b) In the event that any such matter. If the indemnifying party, by Party does not notify the 30th day indemnified Party within thirty (30) calendar days after receipt of the notice of the claim that it is undertaking the defense of the indemnifiable claim described in the claim notice, the indemnified Party has the right to contest, settle, and/or compromise on the indemnifiable claim in the exercise of its discretion at the expense of the indemnifying Party. However, the indemnified Party must notify the indemnifying Party of any compromise or settlement of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such indemnifiable claim), does not elect to defend against such claim, the party to be . The indemnified Party will (upon further notice to the indemnifying party) have the right to undertake participate in the defensesettlement and/or defense through counsel chosen by the indemnified Party; provided, compromise or settlement however, that the fees and expenses of such claim on behalf of and for the account and risk of counsel will not be borne by the indemnifying party and at Party. The Parties further agree that the indemnifying party's expense, subject Party will not be liable to the right of indemnified Party for any legal or other expenses subsequently incurred by the indemnifying party to assume indemnified Party in connection with the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to the contrary notwithstanding, matter after the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless Party has assumed such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withhelddefense.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Sources: Affiliate Agreement
Conditions of Indemnification. The respective obligations and liabilities of Seller the Company and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof Investor hereunder with respect to claims their respective indemnities pursuant to this SECTION 6, resulting from the assertion of liability by third parties any Claim shall be subject to the following additional terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the The indemnified party to be indemnified shall give prompt written notice to the indemnifying party written notice thereof together with a copy of any Claim which is asserted against, resulting to, imposed upon or incurred by such indemnified party and which may give rise to liability of the indemnifying party pursuant to this SECTION 6, stating (to the extent known or reasonably anticipated) the nature and basis of such claimClaim and the amount thereof. The omission of the indemnified party so to notify the indemnifying party of any Claim shall not relieve the indemnifying party from any liability it may have hereunder except to the extent that (i) the liability was caused or increased by such omission, process or other legal pleading(ii) the ability of the indemnifying party to reduce or defend against the liability was materially adversely affected by the omission.
(b) The indemnifying party may engage counsel with respect to any such Claim, the representation (including the compromise or settlement of any Claim) to be undertaken on behalf of the indemnified party, and the indemnifying indemnified party shall have right to approve counsel (which approval shall not be unreasonably withheld). The indemnified party shall have the prior right to approve any compromise or settlement of any Claim by counsel engaged by the indemnifying party (which approval shall not be unreasonably withheld), unless such compromise or settlement contains a full release of the indemnified party of any and all liability and does not impose any restrictions on the indemnified party or its business or affairs. In the event the indemnifying party elects not to undertake the defense of the Claim by its own counsel, or in the event that the indemnified party reasonably believes that representation by counsel designated by the indemnifying party would be inappropriate due to actual or potential conflicts of interest, the indemnified party will undertake the defense thereof by one counsel or other representatives designated by it, at the cost and expense of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of . In any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to the contrary notwithstandingevent, the indemnifying party shall not settle any claim without the consent parties will advance all expenses of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheldparties as incurred.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Conditions of Indemnification. (1) In the event any member of the Investor Group has a reasonable good faith basis for asserting a Claim for Damages, such party shall give prompt written notice to the other parties hereto, briefly setting forth the basis of the Claim and the amount thereof (or, if not then determinable, a reasonable good faith estimate of the amount thereof) in reasonable detail.
(2) The respective obligations and liabilities of Seller and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof ▇▇▇▇ with respect to claims resulting from the assertion of liability Claims made by third parties shall be subject to the following terms and conditions:
(1) The indemnified party will give ▇▇▇▇ prompt notice of any such Claim as set forth in subsection (a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleadingabove, and the indemnifying party ▇▇▇▇ shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.chosen by it;
(b2) In the event that the indemnifying partyIf ▇▇▇▇, by the 30th day within a reasonable time after receipt of notice of any such claim (orClaim, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect fails to defend the indemnified party against which such claimClaim has been asserted, the indemnified party to be indemnified will shall (upon further notice to the indemnifying party▇▇▇▇) have the right to undertake the defense, compromise or settlement of such claim Claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, ▇▇▇▇ subject to the right of the indemnifying party ▇▇▇▇ to assume the defense of such claims Claim at any time prior to settlement, compromise or final determination thereof.;
(c3) If, in the opinion of the indemnified party's legal counsel (which shall be reasonably acceptable to ▇▇▇▇), a conflict of interest with respect to any Claim exists between the indemnified party against which a Claim has been asserted and ▇▇▇▇, then such indemnified party shall have the right to retain its own counsel with respect to such Claim; PROVIDED that the reasonable fees and expenses of such counsel shall be at the expense of ▇▇▇▇; and
(4) Anything in this Section 6.03 Article X to the contrary notwithstanding, (A) if there is a reasonable probability that a Claim may materially and adversely affect the indemnifying indemnified party other than as a result of money damages or other money payments, the indemnified party shall not have the right, at its own cost and expense, to defend, compromise or settle any claim such Claim; PROVIDED, HOWEVER, that if such Claim is settled without Dina's consent, the indemnified party shall be deemed to have waived all rights hereunder against ▇▇▇▇ for money damages arising out of such Claim, and (B) ▇▇▇▇ shall not, without the written consent of the party indemnified party, settle or compromise any Claim or consent to be indemnified unless such settlement involves only the payment entry of money and any judgment which does not include as an unconditional term thereof the giving by the claimant provides or the plaintiff to the indemnified party to be indemnified a release from all liability in respect of to such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheldClaim.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities of Seller the Company and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof each Investor hereunder with respect to claims their respective indemnities pursuant to this SECTION , resulting from the assertion of liability by third parties any Claim shall be subject to the following additional terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the The indemnified party to be indemnified shall give prompt written notice to the indemnifying party written notice thereof together with a copy of any Claim which is asserted against, resulting to, imposed upon or incurred by such indemnified party and which may give rise to liability of the indemnifying party pursuant to this SECTION , stating (to the extent known or reasonably anticipated) the nature and basis of such claimClaim and the amount thereof. The omission of the indemnified party so to notify the indemnifying party of any Claim shall not relieve the indemnifying party from any liability it may have hereunder except to the extent that (i) the liability was caused or increased by such omission, process or other legal pleading(ii) the ability of the indemnifying party to reduce or defend against the liability was materially adversely affected by the omission.
(b) The indemnifying party may engage counsel with respect to any such Claim, the representation (including the compromise or settlement of any Claim) to be undertaken on behalf of the indemnified party, and the indemnifying indemnified party shall have right to approve counsel (which approval shall not be unreasonably withheld). The indemnified party shall have the prior right to approve any compromise or settlement of any Claim by counsel engaged by the indemnifying party (which approval shall not be unreasonably withheld), unless such compromise or settlement contains a full release of the indemnified party of any and all liability and does not impose any restrictions on the indemnified party or its business or affairs. In the event the indemnifying party elects not to undertake the defense of the Claim by its own counsel, or in the event that the indemnified party reasonably believes that representation by counsel designated by the indemnifying party would be inappropriate due to actual or potential conflicts of interest, the indemnified party will undertake the defense thereof by one counsel or other representatives designated by it, at the cost and expense of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of . In any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to the contrary notwithstandingevent, the indemnifying party shall not settle any claim without the consent parties will advance all expenses of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheldparties as incurred.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof Stockholder hereunder with respect to claims their respective indemnities pursuant to this Section 11, resulting from the assertion of liability by third parties any Claim shall be subject to the following terms and conditions:
(a) Within 20 days The Buyer Indemnified Person must assert a Claim for indemnification within [two] years following the Closing. Notwithstanding the foregoing, any Claim relating to any provision of SECTION 4.9 may be made throughout the period ending one year following the latter of (or such earlier i) the expiration of all applicable statutes of limitation (including extensions), and (ii) the final determination of (and the expiration of time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgmentappeal) after receipt of notice of commencement of any action evidenced by service of process audit, examination, investigation or other legal pleadingproceeding relating to Taxes covered by, or with reasonable promptness after the assertion in writing of any claim by a third partyClaim under, the party to be indemnified SECTION 4.9 hereof.
(b) The Buyer Indemnified Person shall give prompt written notice to the indemnifying party written notice thereof together with a copy of any Claim which is asserted against resulting to, imposed upon or incurred by such claim, process or other legal pleading, indemnified party and which may give rise to liability of the indemnifying party shall have pursuant to this SECTION 11, stating (to the right to undertake extent known or reasonably anticipated) the defense thereof by nature and basis of such Claim and the amount thereof.
(c) The Buyer Indemnified Person may engage counsel or representatives of its own choosing and at its own expense; provided, however, that the party with respect to be indemnified may participate in the defense with counsel of its own choice and at its own expense.
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim Claim, such representation (or, if earlier, by including the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim any Claim) to be undertaken on behalf of and for the account and risk of the indemnifying party. In the event the Buyer Indemnified Person elects not to undertake such defense by its own representatives, the Buyer Indemnified Person shall give prompt written notice of such election to the indemnifying party, and the indemnifying party and at will undertake the defense thereof by counsel or other representatives designated by it whom the Buyer Indemnified Person determines in writing to be satisfactory for such purposes. The consent of the Buyer Indemnified Person to the indemnifying party's expense, subject to the right choice of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise counsel or final determination thereof.
(c) Anything in this Section 6.03 to the contrary notwithstanding, the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent other representative shall not be unreasonably withheld.
(d) The party to In the event that any claim shall arise out of a transaction or cover any period or periods in which the Stockholder, on the one hand, and Titan Wireless and Buyer, on the other hand, shall each be indemnified liable hereunder for part of the liability or obligation arising therefrom, then the parties shall, each choosing its or his own counsel and bearing its or his own expense, defend such Claim, and no settlement or compromise of such Claim may be made without the joint consent or approval of Titan Wireless and the indemnifying party will each cooperate with all reasonable requests Stockholder (which consent shall not be unreasonably withheld), except where the respective liabilities and obligations of Buyer and Titan Wireless, on the otherone hand, and the Stockholder, on the other hand, are clearly allocable or attributable on the basis of objective facts.
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities of Seller an Indemnitee and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") an Indemnitor under Sections 6.01 and 6.02 hereof this Article 4 with respect to claims for a Loss or potential Loss resulting from the assertion of liability by a third parties party (a “Claim”) shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified The Indemnitee shall give the indemnifying party Indemnitor notice of any such Claim promptly after the Indemnitee learns of the existence of or receives written notice thereof together with a copy of (and in no event more than fifteen (15) days after the Indemnitee receives such claim, process or other legal pleadingwritten notice), and the indemnifying party Indemnitor shall have the right option to undertake the defense thereof with counsel of their own choosing by representatives giving written notice thereof to the Indemnitee within thirty (30) days after receiving such notice. All cost and expense of such defense (including, without limitation, reasonable fees and disbursements of counsel incurred in litigation or otherwise), and any settlement or compromise resulting from the defense of any Claim by the Indemnitor, shall be paid for by the Indemnitor, provided, however, that the Indemnitor shall not settle or compromise any such Claim unless the Indemnitee is fully released and discharged therefrom as a result thereof. The Indemnitee shall be entitled to participate in the defense of such Claim with counsel of its own choosing and choice, at its own expense; provided, however, that the party Indemnitee shall not, without the written consent of the Indemnitor, compromise or settle any such Claim unless the Indemnitee waives its right to be indemnified may participate in the defense with counsel of its own choice and at its own expenseindemnity therefor hereunder.,
(b) In the event that the indemnifying partyIndemnitor, by the 30th day within a reasonable time after receipt of notice of any such claim Claim, but in no event more than thirty (or30) days after receipt of such notice, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect fails to defend against such claimor take other appropriate action, the party to be indemnified Indemnitee will (upon further notice to the indemnifying partyIndemnitor) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for Claim; provided, however, that the account and risk Indemnitee shall not, without the written consent of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlementIndemnitor, compromise or final determination thereofsettle any such Claim unless the Indemnitee waives its right to indemnity therefor hereunder.
(c) Anything The Indemnitee’s failure to meet any condition or perform any obligation set forth in this Section 6.03 4.3 shall in no way limit or negate any obligations or liabilities of the Indemnitor unless the Indemnitor is actually prejudiced by such failure and, in such event, the Indemnitor’s obligations or liabilities shall be limited only to the contrary notwithstanding, the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect extent of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheldprejudice.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (the "indemnifying party") If either Party proposes to seek indemnification from the other (under the "party to be indemnified") under Sections 6.01 and 6.02 hereof with respect to claims resulting from provisions of this Section XII, it shall notify the assertion other Party within 15 days of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement any Claim and shall cooperate fully with the other Party in the defense of such claims or suits. The indemnified Party shall cooperate with the indemnifying Party (at the indemnifying Party’s expense) in all respects in connection with the defense of any action evidenced by service of process or other legal pleadingsuch Claim. The indemnifying Party shall, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party upon written notice thereof together from the indemnified Party of a Claim, undertake to conduct all proceedings or negotiations in connection with a copy of such claimthe Claim, process or other legal pleadingassume the defense thereof, and all other required steps or proceedings to settle or defend any such Claim, including the indemnifying party selection of counsel that shall be approved by the indemnified Party, which approval shall not be unreasonably withheld, and payment of all reasonable expenses. The indemnified Party shall have the right to undertake the defense thereof by representatives of its own choosing employ separate counsel and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own the indemnified Party’s sole expense.
(b) In the event that . If the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect Party fails to defend against such claimor settle in good faith any Claim as provided above, then the party to be indemnified will (upon further notice to the indemnifying party) Party shall have the right to undertake the defense, compromise or settlement take over sole control of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlementthe Claim and all negotiations for its settlement or compromise, compromise provided that the indemnifying Party shall be liable for (and shall pay as they become due) all costs and expenses (including attorneys’ fees) reasonably incurred by the indemnified Party in its defending or final determination thereof.
(c) Anything in this Section 6.03 to negotiating settlement of the contrary notwithstandingClaim. Notwithstanding the foregoing, the indemnifying party shall not settle any claim without Party primarily responsible for handling the Claim (as determined above) will first obtain the prior written consent of the party to be indemnified unless such other Party for any settlement involves only of a Claim that (i) does not include a complete release of the payment of money and the claimant provides to the party to be indemnified a release other Party from all liability in with respect of such claim. If thereto, (ii) compromises the settlement rights of the claim involves more than other Party, or (iii) imposes any restrictions on the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheldother Party.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Sources: Affymetrix Instrument and Chip Supply Agreement (Affymetrix Inc)
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser the Stockholder, on the one hand, and Buyer and MedE, on the other hand (the "indemnifying partyparties") ), to the other others (the "party parties to be indemnified") under Sections 6.01 6.02 and 6.02 6.03 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party parties to be indemnified shall give the indemnifying party parties written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party parties shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.choosing;
(b) In in the event that the indemnifying partyparties, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th tenth day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party parties to be indemnified will (upon further notice to the indemnifying partyparties) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expenseparties, subject to the right of the indemnifying party parties to assume the defense of such claims claim at any time prior to settlement, compromise or final determination thereof., provided that the indemnifying parties shall be given at least 15 days prior written notice to the effectiveness of any such proposed settlement or compromise;
(c) Anything anything in this Section 6.03 6.04 to the contrary notwithstandingnotwithstanding (i) if there is a reasonable probability that a claim may materially and adversely affect the indemnifying parties other than as a result of money damages or other money payments, the indemnifying party parties shall not have the right, at their own cost and expense, to compromise or settle any claim such claim, but (ii) the indemnifying parties shall not, without the prior written consent of the party to be indemnified unless such settlement involves only indemnified, settle or compromise any claim or consent to the payment entry of money and any judgment which does not include as an unconditional term thereof the giving by the claimant provides or the plaintiff to the party parties to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.; and
(d) The party to be in connection with any such indemnification, the indemnified and the indemnifying party parties will each cooperate with in all reasonable requests of the otherindemnifying parties.
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (a) A party entitled to indemnification hereunder (the "indemnifying partyIndemnified Party") to shall notify the other party or parties liable for such indemnification (the "party to be indemnifiedIndemnified Party") under Sections 6.01 and 6.02 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by Claim or potential liability for Taxes ("Tax Claim") which the Indemnified Party has determined has given or could give rise to a third party, right of indemnification under this Agreement. Such notice shall be given within a reasonable (taking into account the party to be indemnified nature of the Claim or Tax Claim) period of time after the Indemnified Party has actual knowledge thereof. The Indemnifying Party shall give the indemnifying party satisfy its obligations under this Article 8 within forty days after receipt of subsequent written notice thereof together with a copy from the Indemnified Party if an amount is specified therein, or promptly following receipt of subsequent written notice or notices specifying the amount of such claim, process Claim or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expenseTax Claim additions thereto; provided, however, that for so long as the party Indemnifying Party is in good faith defending a Claim or Tax Claim pursuant to Section 9.3(b) hereof, its obligation to indemnify the Indemnified Party with respect thereto shall be indemnified may participate in suspended (other than with respect to any costs, expenses or other liabilities incurred by the Indemnified Party prior to the assumption of the defense with counsel by the Indemnifying Party). Failure to provide a notice of its own choice and at its own expenseClaim or Tax Claim within the time period referred to above shall not constitute a defense to a Claim or Tax Claim or release the Indemnifying Party from any obligation hereunder to the extent that such failure does not prejudice the position of the Indemnifying Party.
(b) In If the facts giving rise to any such indemnification involve any actual, threatened or possible Claim or demand or Tax Claim by any person not a party to this Agreement against the Indemnified Party, the Indemnifying Party shall be entitled to contest or defend such Claim or demand Tax Claim at its expense and through counsel of its own choosing, which counsel shall be reasonably acceptable to the Indemnified Party, such right to contest or defend shall only apply if the Indemnifying Party gave written notice of its intention to assume the contest and defense of such Claim or demand Tax Claim to the Indemnified Party as soon as practicable, but in no event that the indemnifying party, by the 30th day more than thirty days after receipt of the notice of Claims or Tax Claim, and provided the Indemnified Party with appropriate assurances as to the creditworthiness of the Indemnifying Party, and that the Indemnifying Party will be in a position to pay all fees, expenses and judgments that might arise out of such Claim or demand Tax Claim. The Indemnified Party shall have the obligation to cooperate in the defense of any such claim (orClaim or demand Tax Claim and the right, if earlierat its own expense, to participate in the defense of any Claim or Tax Claim. So long as the Indemnifying Party is defending in good faith any such Claim or demand Tax Claim asserted by a third party against the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claimIndemnified Party, the party to be indemnified will (upon further notice to the indemnifying party) Indemnified Party shall not settle or compromise such Claim or demand Tax Claim. The Indemnifying Party shall have the right to undertake the defense, settle or compromise any such Claim or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to the contrary notwithstanding, the indemnifying party shall not settle any claim demand Tax Claim without the consent of the party Indemnified Party at any time utilizing its own funds to be indemnified unless do so if in connection with such settlement involves only or compromise the payment of money Indemnified Party is fully released by the third party and the claimant provides is paid in full any indemnification amounts due hereunder. The Indemnified Party shall make available to the Indemnifying Party or its agents all records and other materials in the Indemnified Party's possession reasonably required by it for its use in contesting any third party to be indemnified a release from all liability in respect of such claim. If Claim or demand Tax Claim and shall otherwise cooperate, at the settlement expense of the claim involves more than Indemnifying Party, in the payment of moneydefense thereof in such manner as the Indemnifying Party may reasonably request. Whether or not the Indemnifying Party elects to defend such Claim or demand Tax Claim, the indemnifying party Indemnified Party shall not settle the claim without the prior consent of the party have no obligation to be indemnified, which consent shall not be unreasonably withhelddo so.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Conditions of Indemnification. (a) The respective obligations and liabilities of Seller and Purchaser (the "an indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof this Agreement with respect to indemnifiable claims resulting from the assertion of liability made by third parties shall be subject to the following terms and conditions:
(ai) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the The indemnified party to be indemnified shall give the indemnifying party written prompt notice thereof together with a copy of any such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives chosen by it;
(ii) If the indemnifying party undertakes the defense of any such claim, the indemnified party shall, to the best of its own choosing and at its own expense; providedability, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.
(b) In the event that assist the indemnifying party, at the expense of the indemnifying party, in the defense of such claim, and shall promptly send to the indemnifying party, at the expense of the indemnifying party, copies of any documents received by the 30th day indemnified party which relate to such claim;
(iii) If the indemnifying party, within a reasonable time after receipt of notice of any such claim (orclaim, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect fails to defend the indemnified party against which such claimclaim has been asserted, the indemnified party to be indemnified will shall (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims claim at any time prior to settlement, compromise or final determination thereof.; and
(civ) Anything in this Section 6.03 Article IX to the contrary notwithstanding, (i) if there is a reasonable probability that a claim may materially and adversely affect the indemnified party other than as a result of money damages or other money payments, the indemnified party shall have the right, at its own cost and expense, to defend, compromise or settle such claim; and (ii) the indemnifying party shall not settle any claim not, without the written consent of the party indemnified party, settle or compromise any claim or consent to be indemnified unless such settlement involves only the payment entry of money and any judgment which does not include as a term thereof the giving by the claimant provides or the plaintiff to the indemnified party to be indemnified a release from all liability in with respect of to such claim. .
(b) If the settlement Purchaser Group has a reasonable good faith basis for asserting a claim for Damages, it shall give prompt written notice to Seller, setting forth in reasonable detail the basis of the claim involves more than and the payment of moneyamount thereof (or, if not then determinable by the indemnifying party shall not settle the claim without the prior consent Purchaser Group, a reasonable good faith estimate of the party to be indemnified, which consent shall not be unreasonably withheldamount thereof).
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Sources: Stock Purchase Agreement (Hayes Lemmerz International Inc)
Conditions of Indemnification. The respective obligations and liabilities of Seller the Shareholder and Purchaser Parent (the "indemnifying partyindemnitor") to the other parties (the "party to be indemnifiedindemnitees") under Sections 6.01 10.01 and 6.02 hereof 10.02 with respect to claims resulting from the assertion of liability by third parties parties, shall be subject to the following terms and conditions:
(ai) Within 20 In the event that a legal proceeding or action is commenced against an indemnitees with respect to any indemnified matter, that indemnitees promptly will provide written notice thereof to the indemnitor (but in no event later than ten (10) days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleadingnotice), or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such any claim, process or other legal pleading, and the indemnifying party shall have the right to . The indemnitor will undertake the defense thereof thereof, as its expense, by representatives counsel of its own choosing and at its own expensereasonably acceptable to the indemnitees; provided, however, provided that the party to be indemnified indemnitees may participate in all aspects of the defense with with, or without, counsel of its own choice and at its own expense.
(b) choice. In the event that the indemnifying partyindemnitees elect to retain additional counsel of their own choice, the fees and expenses of said counsel shall be the exclusive responsibility of the indemnitees unless (i) the indemnitor has agreed to pay such fees and expenses, (ii) the indemnitor has failed to undertake the defense of such action, or (iii) if the nature of any action presents a conflict between the interests of the indemnitor and the indemnitees, or the indemnitees have been advised by counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the indemnitor (in which case, if the indemnitees inform the indemnitor in writing that it elects to employ separate counsel at the expense of the indemnitor, the indemnitor shall have no further right to participate in or undertake the defense of such action on behalf of the indemnitees except with respect to payment of full indemnification for any Damages).
(ii) Except for failure by the 30th indemnitees to provide notice as provided for above in subsection (a), in the event that the indemnitor, on or before the thirtieth day after receipt of notice of any such claim (action, or, if applicable and earlier, by on or before the 10th tenth day preceding the day on which an answer answer, appearance or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim)claim or other prejudice to the indemnitees, does not elect fails to defend against undertake the defense of such claimaction, the party to be indemnified indemnitees will (upon further notice to the indemnifying party) have the right to retain counsel of their own choosing and undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party indemnitor without waiving the indemnitee's right to full indemnification from the indemnitor and at the indemnifying partyindemnitor's expense, subject to the right of the indemnifying party indemnitor to assume the defense of such claims at any time prior to settlement, compromise or final determination thereofthereof with counsel reasonably acceptable to the indemnitees.
(ciii) Anything in this Section 6.03 to Notwithstanding the contrary notwithstandingforegoing, the indemnifying party indemnitor shall not settle any claim asserted against the indemnitees without the prior consent of the party to be indemnified indemnitees unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified indemnitees with a release from all liability in respect of such claim. If the settlement of the claim any claims involves more than the payment of money, the indemnifying party indemnitor shall not settle the claim without the prior written consent of the party to be indemnifiedindemnitees, which consent shall not be unreasonably withheld. In the event the indemnitor has not undertaken the defense, as described above, with respect to any claim resulting from the assertion of liability by third parties, the indemnitor may settle any claim without prior notice to and consent of the indemnifying party, and indemnitor agrees to promptly, and in any event within thirty days after receipt of written demand, reimburse indemnitees for all Damages, including without limitation all amounts paid or incurred in connection with such settlement, together with attorneys' fees, costs and expenses and other costs incurred in connection with defense of the claim.
(div) The party to be indemnified indemnitees and the indemnifying party indemnitor will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Tca Cable Tv Inc)
Conditions of Indemnification. The respective obligations and liabilities of Seller Shareholder, Purchaser and Purchaser Parent (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 11.1 and 6.02 hereof 11.2 with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgmentposition) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, provided that the party to be indemnified may participate in the defense with counsel of its own choice choice, the fees and expenses of which counsel shall be paid by the party to be indemnified unless (i) the indemnifying party has agreed to pay such fees and expenses, (ii) the indemnifying party has failed to assume the defense of such action or (iii) the named parties to any such action (including any impleaded parties) include both the indemnifying party and the party to be indemnified and the party to be indemnified has been advised by counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the indemnifying party (in which case, if the party to be indemnified informs the indemnifying party in writing that it elects to employ separate counsel at its own expensethe expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action on behalf of the party to be indemnified, it being understood, however, that the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for the party to be indemnified, which firm shall be designated in writing by the party to be indemnified).
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to Notwithstanding the contrary notwithstandingforegoing, the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Sources: Stock Purchase Agreement (Boundless Motor Sports Racing Inc)
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (herein sometimes called the "indemnifying party"“Indemnifying Party”) to the other (herein sometimes called the "party to be indemnified"“Indemnified Party”) under Sections 6.01 10.1 and 6.02 10.2 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days Seller and Purchaser each agree to designate a single point of contact within each of their respective corporate organizations to give and receive notices of disputes under this Agreement and the Related Agreements (the “Dispute Officer”), who shall be acceptable to the other party and shall be a senior manager who either reports directly to the Chief Executive Officer or such earlier time as might a person who reports to a person who reports directly to the Chief Executive Officer. In the event of any claim by Purchaser or Seller against the other covered by this Article X that does not involve a claim, audit or inquiry by a third party to which a response must be required served in order to avoid prejudicing default or waiver of any defense, the indemnifying party's position including Parties agree that for a period of not less than 15 days following receipt of the entry claim by the Party against which the claim has been asserted, they each will respond to reasonable inquiries by the other Party and will hold at least one meeting in person or by telephone conference of the Dispute Officers to attempt to resolve the claim and to provide prompt reimbursement to the claiming Party of the amount agreed to be owed to such Party. To the extent that any amount of any claim remains in dispute at the end of the agreed period for consideration by the Dispute Officers, which shall not be less than 15 days following receipt of the claim by the Party against whom the claim has been made, the Party seeking recovery may proceed with its claim under Section 10.3(b). Any undisputed portion of any invoice or other claim that has been submitted pursuant to this Section 10.3 shall be paid to the Party to which such amount is owed within 15 days of the later of (i) the date the invoice or claim is received by the Indemnifying Party, (ii) the date a default judgmentbona fide dispute over such portion is resolved by agreement of the Parties, or (iii) if a bona fide dispute is not resolved by agreement, the date such dispute is otherwise finally resolved. Amounts not paid within the time limits provided in this Section 10.3(a) shall bear interest at the Contract Interest Rate.
(b) On or before the earliest of (i) the 20th day after receipt of notice (referred to herein as “notice”) of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing writing, formal or informal, of any claim, audit or inquiry (referred to herein as a “claim”), (ii) the tenth day preceding the day on which a responsive pleading must be served in order to prevent judgment by default in favor of the person asserting the claim, or (iii), in the case of a claim by a third partydescribed in (a) above, the party to be indemnified 30th day after expiration of the agreed period of consideration by the Dispute Officers, the Indemnified Party shall give the indemnifying party Indemnifying Party written notice thereof together with a copy of the document asserting such claim. Failure to give such notice timely shall not relieve the Indemnifying Party from any obligation under this Agreement except to the extent that the Indemnifying Party is prejudiced, process or other legal pleading, and except that the indemnifying party Indemnifying Party shall not be responsible for expenses incurred during the period within which the Indemnified Party failed to give notice. The Indemnifying Party shall have the right to respond to such claim and to undertake the defense thereof by representatives a representative of its own choosing (which shall be reasonably satisfactory to the Indemnified Party) and at its own expenseto enter into a settlement or compromise thereof or consent to a judgment with respect thereto; provided, however, the Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle or compromise any claim by any third party or consent to the entry of judgment (i) that does not include as an unconditional term thereof the party giving by the claimant or the plaintiff to be indemnified the Indemnified Party a release from all liability in respect of such claim, or (ii) that contemplates any payment or performance by the Indemnified Party. The Indemnified Party may participate in the defense with retain separate counsel of its own choice and at its own expense.sole cost and expense to represent it in any proceedings involving any claim;
(bc) In the event that the indemnifying partyIndemnifying Party, by the 30th 20th day after receipt of notice of any such a claim by a third party (or, if earlier, by the 10th fifth day preceding the day on which an answer or other a responsive pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), (i) does not elect to defend against such claim, or (ii) if an election to defend is made, does not provide reasonable assurances to the party Indemnified Party of (x) the Indemnifying Party’s (or its insurer’s) ability to pay defense costs and indemnity costs likely to be indemnified will incurred with respect to the claim, or (y) the Indemnifying Party’s active and diligent defense of the claim, the Indemnified Party will, upon further notice to the indemnifying party) Indemnifying Party, have the right to respond to such claim and to undertake the defenseto defend, compromise or settlement of settle such claim on behalf of and for the account and risk of loss of the indemnifying party and at the indemnifying party's expenseIndemnifying Party, subject to the right of the indemnifying party Indemnifying Party to assume the defense of such claims claim upon satisfying conditions (i) and (ii) above at any time prior to the settlement, compromise or final determination thereof (if such assumption be permitted by any court or other tribunal having jurisdiction thereof.
(c) Anything in this Section 6.03 to ), provided that the contrary notwithstanding, the indemnifying party Indemnifying Party shall not settle any claim without the consent be given at least 15 days’ prior written notice of the party to be indemnified unless effectiveness of any such proposed settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.or compromise; and
(d) The party to be indemnified and In connection with any such indemnification, the indemnifying party will each Indemnifying Party shall cooperate with in all reasonable requests of the otherIndemnified Party.
Appears in 1 contract
Sources: Stock Purchase Agreement (Security Capital Corp/De/)
Conditions of Indemnification. The respective several obligations and liabilities of Seller the Purchasers, on the one hand, and Purchaser the Company, on the other hand (the "“indemnifying party") ”), to the other (the "“party to be indemnified"”) under Sections 6.01 and 6.02 Section 7.02 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within as soon as reasonably practicable but not later than 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.choosing;
(b) In in the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th tenth day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person Person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims claim at any time prior to settlement, compromise or final determination thereof., provided that the indemnifying party shall be given at least 15 days prior written notice of the effectiveness of any such proposed settlement or compromise;
(c) Anything anything in this Section 6.03 7.03 to the contrary notwithstandingnotwithstanding (i) if there is a reasonable probability that a claim may materially and adversely affect the indemnifying party other than as a result of money damages or other money payments, the indemnifying party shall not have the right, at its own cost and expense, to compromise or settle any claim such claim, but (ii) the indemnifying party shall not, without the prior written consent of the party to be indemnified unless such settlement involves only indemnified, settle or compromise any claim or consent to the payment entry of money and any judgment which does not include as an unconditional term thereof the giving by the claimant provides or the plaintiff to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.; and
(d) The party to be in connection with any such indemnification, the indemnified and the indemnifying party will each cooperate with in all reasonable requests of the otherindemnifying party.
Appears in 1 contract
Sources: Securities Purchase Agreement (Savvis Communications Corp)
Conditions of Indemnification. The respective obligations and liabilities of Seller HFG, MTS and Purchaser the Post-Closing Company (the "indemnifying party") to the other others (the "party to be indemnified") under Sections 6.01 and 6.02 hereof this Article 9 with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgmentposition) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, provided that the party to be indemnified may participate in the defense with counsel of its own choice choice, the fees and expenses of which counsel shall be paid by the party to be indemnified unless (i) the indemnifying party has agreed to pay such fees and expenses, (ii) the indemnifying party has failed to assume the defense of such action or (iii) the named parties to any such action (including any impleaded parties) include both the indemnifying party and the party to be indemnified and the party to be indemnified has been advised by counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the indemnifying party (in which case, if the party to be indemnified informs the indemnifying party in writing that it elects to employ separate counsel at its own expensethe expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action on behalf of the party to be indemnified, it being understood, however, that the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for the party to be indemnified, which firm shall be designated in writing by the party to be indemnified).
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to Notwithstanding the contrary notwithstandingforegoing, the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Sources: Stock Exchange Agreement (Microwave Transmission Systems Inc)
Conditions of Indemnification. The respective obligations and liabilities of Seller the Company, the M▇▇▇▇▇ Group and Purchaser (the "“indemnifying party"”) to the other (the "“party to be indemnified"”) under Sections 6.01 Section 11.1 and 6.02 hereof Section 11.2 with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment’s position) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, provided that the party to be indemnified may participate in the defense with counsel of its own choice choice, the fees and expenses of which counsel shall be paid by the party to be indemnified unless (i) the indemnifying party has agreed to pay such fees and expenses, (ii) the indemnifying party has failed to assume the defense of such action or (iii) the named parties to any such action (including any impleaded parties) include both the indemnifying party and the party to be indemnified and the party to be indemnified has been advised by counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the indemnifying party (in which case, if the party to be indemnified informs the indemnifying party in writing that it elects to employ separate counsel at its own expensethe expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action on behalf of the party to be indemnified, it being understood, however, that the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for the party to be indemnified, which firm shall be designated in writing by the party to be indemnified).
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's ’s expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to Notwithstanding the contrary notwithstandingforegoing, the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Sources: Asset Purchase Agreement (Boundless Motor Sports Racing Inc)
Conditions of Indemnification. The respective obligations and liabilities of Seller the Shareholders, on the one hand, and Purchaser the Purchaser, on the other hand (herein sometimes called the "indemnifying partyINDEMNIFYING PARTY") ), to the other (herein sometimes called the "party to be indemnifiedPARTY TO BE INDEMNIFIED" or the "INDEMNIFIED PARTY") under Sections 6.01 and 6.02 Section 8.03 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 within 30 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleadingpleading (provided that failure so to notify the indemnifying party of the assertion of a claim within such period shall not affect its indemnity obligation hereunder except as and to the extent that such failure shall adversely affect the defense of such claim), and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.choosing;
(b) In in the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th tenth day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person Person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims claim at any time prior to settlement, compromise or final determination thereof.;
(c) Anything anything in this Section 6.03 8.04 to the contrary notwithstanding, (i) if there is a reasonable probability that a claim may materially and adversely affect the indemnified party other than as a result of money damages or other money payments, the indemnified party shall have the right, at its own cost and expense, to compromise or settle such claim, but (ii) the indemnified party shall not, without the prior written consent of the indemnifying party, settle or compromise any claim or content to the entry of any judgment which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.; and
(d) The party to be in connection with any such indemnification, the indemnified and the indemnifying party will each cooperate with in all reasonable requests of the otherindemnifying party. In the event that the "indemnifying party" or the "party to be indemnified" as described in this Section 8.04 is the Shareholders as a group, then any notices required to be given to or by, and all other actions or decisions required to be taken or made by, such "indemnifying party" or the "party to be indemnified" as provided in this Section 8.04, may be given to or by, or may be taken or made by, the Shareholder Representative.
Appears in 1 contract
Sources: Stock Purchase Agreement (Jupiter Communications Inc)
Conditions of Indemnification. The respective Prior to any indemnification, the obligations and liabilities of Seller and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof Stockholders or Holding with respect to claims resulting from the assertion of liability by third parties Holdings Claims or Stockholders' Claims (collectively, "Claims") shall be subject to the following terms and conditions:
(a) Within 20 days The party entitled to be indemnified (or such earlier time as might the "Indemnitee") will be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party (the "Indemnitor") written notice thereof together with a copy of any such Claim on or prior to the expiration of the applicable period for which the applicable representation or warranty is intended to survive as stated in Section 4.1.
(b) Promptly after the assertion by any third party of any Claim against any Indemnitee that, in the judgment of such claimIndemnitee, process or other legal pleadingmay result in the incurrence by such Indemnitee of Damages for which such Indemnitee would be entitled to indemnification pursuant to this Agreement, such Indemnitee shall deliver to the Indemnitor a written notice describing in reasonable detail such Claim and such Indemnitor may participate in and, at its option, assume the defense of the Indemnitee against such Claim (including the employment of counsel, who shall be reasonably satisfactory to such Indemnitee, and the indemnifying party payment of expenses). Any Indemnitee shall have the right to undertake the defense thereof by representatives of its own choosing employ separate counsel in any such Claim and at its own expense; provided, however, that the party to be indemnified may participate in the defense with thereof, but the fees and expenses of such counsel shall not be at the expense of its own choice and at its own expense.
the Indemnitor unless (bi) In the event that the indemnifying partyIndemnitor shall have failed, within a reasonable time after having been notified by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor Indemnitee of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement existence of such claim on behalf of and for Claim as provided in the account and risk of the indemnifying party and at the indemnifying party's expensepreceding sentence, subject to the right of the indemnifying party to assume the defense of such claims at Claim, (ii) the employment of such counsel has been specifically authorized in writing by the Indemnitor, or (iii) the named parties to any time prior such action (including any impleaded parties) include both such Indemnitee and the Indemnitor and such Indemnitee shall have been advised in writing by such counsel that there may be conflicting interests between the Indemnitee and the Indemnitor in the legal defense thereof. No Indemnitor shall be liable to settlement, indemnify any Indemnitee for any compromise or final determination thereof.
(c) Anything in this Section 6.03 to the contrary notwithstanding, the indemnifying party shall not settle settlement of any claim such Claim effected without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheldIndemnitor.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Sources: Equity Contribution Agreement (Richmont Marketing Specialists Inc)
Conditions of Indemnification. The respective obligations and liabilities of Seller Seller, on the one hand, and Purchaser Buyer, on the other, (herein sometimes called the "indemnifying party") to the other (herein sometimes called the "party to be indemnified") under Sections 6.01 and 6.02 Section 9.2 or Section 9.4 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.choosing;
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th tenth day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims claim at any time prior to settlement, compromise or final determination thereof.;
(c) Anything in this Section 6.03 9.3 to the contrary notwithstanding, (i) if there is a reasonable probability that a claim may materially and adversely affect 44 the indemnified party other than as a result of money damages or other money payments, the indemnified party shall have the right, at its own cost and expense, to compromise or settle such claim, but (ii) the indemnified party shall not, without the prior written consent of the indemnifying party, settle or compromise any claim or consent to the entry of any judgment which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.; and
(d) The In connection with any such indemnification, the indemnified party to be indemnified and the indemnifying party will each shall cooperate with in all reasonable requests of the otherindemnifying party.
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days A party entitled to indemnification hereunder (the “Indemnified Party”) shall notify the party or parties liable for such earlier time as might be required to avoid prejudicing indemnification (the indemnifying party's position including the entry of a default judgment“Indemnifying Party”) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by Claim or potential liability for Taxes (“Tax Claim”) which the Indemnified Party has determined has given or could give rise to a third party, right of indemnification under this Agreement. Such notice shall be given within a reasonable (taking into account the party to be indemnified nature of the Claim or Tax Claim) period of time after the Indemnified Party has actual knowledge thereof. The Indemnifying Party shall give the indemnifying party satisfy its obligations under this Article 11 within forty days after receipt of subsequent written notice thereof together with a copy from the Indemnified Party if an amount is specified therein, or promptly following receipt of subsequent written notice or notices specifying the amount of such claim, process Claim or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expenseTax Claim additions thereto; provided, however, that for so long as the party Indemnifying Party is in good faith defending a Claim or Tax Claim pursuant to Section 8.3(b) hereof, its obligation to indemnify the Indemnified Party with respect thereto shall be indemnified may participate in suspended (other than with respect to any costs, expenses or other liabilities incurred by the Indemnified Party prior to the assumption of the defense with counsel by the Indemnifying Party). Failure to provide a notice of its own choice and at its own expenseClaim or Tax Claim within the time period referred to above shall not constitute a defense to a Claim or Tax Claim or release the Indemnifying Party from any obligation hereunder to the extent that such failure does not prejudice the position of the Indemnifying Party.
(b) In If the facts giving rise to any such indemnification involve any actual, threatened or possible Claim or demand or Tax Claim by any person not a party to this Agreement against the Indemnified Party, the Indemnifying Party shall be entitled to contest or defend such Claim or demand Tax Claim at its expense and through counsel of its own choosing, which counsel shall be reasonably acceptable to the Indemnified Party, such right to contest or defend shall only apply if the Indemnifying Party gave written notice of its intention to assume the contest and defense of such Claim or demand Tax Claim to the Indemnified Party as soon as practicable, but in no event that the indemnifying party, by the 30th day more than thirty days after receipt of the notice of Claims or Tax Claim, and provided the Indemnified Party with appropriate assurances as to the creditworthiness of the Indemnifying Party, and that the Indemnifying Party will be in a position to pay all fees, expenses and judgments that might arise out of such Claim or demand Tax Claim. The Indemnified Party shall have the obligation to cooperate in the defense of any such claim (orClaim or demand Tax Claim and the right, if earlierat its own expense, to participate in the defense of any Claim or Tax Claim. So long as the Indemnifying Party is defending in good faith any such Claim or demand Tax Claim asserted by a third party against the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claimIndemnified Party, the party to be indemnified will (upon further notice to the indemnifying party) Indemnified Party shall not settle or compromise such Claim or demand Tax Claim. The Indemnifying Party shall have the right to undertake the defense, settle or compromise any such Claim or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to the contrary notwithstanding, the indemnifying party shall not settle any claim demand Tax Claim without the consent of the party Indemnified Party at any time utilizing its own funds to be indemnified unless do so if in connection with such settlement involves only or compromise the payment of money Indemnified Party is fully released by the third party and the claimant provides is paid in full any indemnification amounts due hereunder. The Indemnified Party shall make available to the Indemnifying Party or its agents all records and other materials in the Indemnified Party’s possession reasonably required by it for its use in contesting any third party to be indemnified a release from all liability in respect of such claim. If Claim or demand Tax Claim and shall otherwise cooperate, at the settlement expense of the claim involves more than Indemnifying Party, in the payment of moneydefense thereof in such manner as the Indemnifying Party may reasonably request. Whether or not the Indemnifying Party elects to defend such Claim or demand Tax Claim, the indemnifying party Indemnified Party shall not settle the claim without the prior consent of the party have no obligation to be indemnified, which consent shall not be unreasonably withhelddo so.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Conditions of Indemnification. The respective obligations and liabilities of Seller and Purchaser (a) A party entitled to indemnification hereunder (the "indemnifying partyIndemnified Party") to will notify the other party or parties liable for such indemnification (the "party to be indemnifiedIndemnifying Party") under Sections 6.01 and 6.02 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by Claim or potential liability for Taxes ("Tax Claim") which the Indemnified Party has determined has given or could give rise to a third party, right of indemnification under this Agreement. Such notice will be given within a reasonable (taking into account the party to be indemnified shall give nature of the indemnifying party Claim or Tax Claim) period of time after the Indemnified Party has actual Knowledge thereof. The Indemnifying Party will satisfy its obligations under this Article 8 within forty days after receipt of subsequent written notice thereof together with a copy from the Indemnified Party if an amount is specified therein, or promptly following receipt of subsequent written notice or notices specifying the amount of such claim, process Claim or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expenseTax Claim additions thereto; provided, however, that for so long as the party Indemnifying Party is in good faith defending a Claim or Tax Claim pursuant to Section 8.3(b) hereof, its obligation to indemnify the Indemnified Party with respect thereto will be indemnified may participate in suspended (other than with respect to any costs, expenses or other liabilities incurred by the Indemnified Party prior to the assumption of the defense with counsel by the Indemnifying Party). Failure to provide a notice of its own choice and at its own expenseClaim or Tax Claim within the time period referred to above will not constitute a defense to a Claim or Tax Claim or release the Indemnifying Party from any obligation hereunder to the extent that such failure does not prejudice the position of the Indemnifying Party.
(b) In If the facts giving rise to any such indemnification involve any actual, threatened or possible Claim or demand or Tax Claim by any person not a party to this Agreement against the Indemnified Party, the Indemnifying Party will be entitled to contest or defend such Claim or demand or Tax Claim at its expense and through counsel of its own choosing, which counsel will be reasonably acceptable to the Indemnified Party, such right to contest or defend will only apply if the Indemnifying Party gave written notice of its intention to assume the contest and defense of such Claim or demand or Tax Claim to the Indemnified Party as soon as practicable, but in no event that the indemnifying party, by the 30th day more than thirty days after receipt of the notice of such Claims or demand or Tax Claim, and provided the Indemnified Party with appropriate assurances as to the creditworthiness of the Indemnifying Party, and that the Indemnifying Party will be in a position to pay all fees, expenses and judgments that might arise out of such Claim or demand or Tax Claim. The Indemnified Party will have the obligation to cooperate in the defense of any such claim (orClaim or demand or Tax Claim and the right, if earlierat its own expense, to participate in the defense of any Claim or demand or Tax Claim. So long as the Indemnifying Party is defending in good faith any such Claim or demand or Tax Claim asserted by a third party against the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claimIndemnified Party, the party to be indemnified Indemnified Party will (upon further notice to the indemnifying party) not settle or compromise such Claim or demand or Tax Claim. The Indemnifying Party will have the right to undertake the defense, settle or compromise any such Claim or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise demand or final determination thereof.
(c) Anything in this Section 6.03 to the contrary notwithstanding, the indemnifying party shall not settle any claim Tax Claim without the consent of the party Indemnified Party at any time utilizing its own funds to be indemnified unless do so if in connection with such settlement involves only or compromise the payment of money Indemnified Party is fully released by the third party and the claimant provides is paid in full any indemnification amounts due hereunder. The Indemnified Party will make available to the Indemnifying Party or its agents all records and other materials in the Indemnified Party’s possession reasonably required by it for its use in contesting any third party to be indemnified a release from all liability in respect of such claim. If Claim or demand or Tax Claim and will otherwise cooperate, at the settlement expense of the claim involves more than Indemnifying Party, in the payment of moneydefense thereof in such manner as the Indemnifying Party may reasonably request. Whether or not the Indemnifying Party elects to defend such Claim or demand or Tax Claim, the indemnifying party shall not settle the claim without the prior consent of the party Indemnified Party will have no obligation to be indemnified, which consent shall not be unreasonably withhelddo so.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Sources: Securities Exchange and Acquisition Agreement (Your Internet Defender, Inc)
Conditions of Indemnification. The respective several obligations and liabilities of Seller the Purchasers, on the one hand, and Purchaser the Company, on the other hand (the "indemnifying party") ), to the other (the "party to be indemnified") under Sections 6.01 and 6.02 Section 7.02 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.choosing;
(b) In in the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th tenth day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person Person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims claim at any time prior to settlement, compromise or final determination thereof., provided that the indemnifying party shall be given at least 15 days prior written notice of the effectiveness of any such proposed settlement or compromise;
(c) Anything anything in this Section 6.03 7.03 to the contrary notwithstandingnotwithstanding (i) if there is a reasonable probability that a claim may materially and adversely affect the indemnifying party other than as a result of money damages or other money payments, the indemnifying party shall not have the right, at its own cost and expense, to compromise or settle any claim such claim, but (ii) the indemnifying party shall not, without the prior written consent of the party to be indemnified unless such settlement involves only indemnified, settle or compromise any claim or consent to the payment entry of money and any judgment which does not include as an unconditional term thereof the giving by the claimant provides or the plaintiff to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.; and
(d) The party to be in connection with any such indemnification, the indemnified and the indemnifying party will each cooperate with in all reasonable requests of the otherindemnifying party.
Appears in 1 contract
Sources: Securities Purchase Agreement (Welsh Carson Anderson Stowe Viii Lp)
Conditions of Indemnification. The respective obligations and liabilities of Seller Sellers, on the one hand, and Purchaser Buyers, on the other hand (the "indemnifying party") ), to the other (each, collectively, the "party to be indemnified") under Sections 6.01 7.02 and 6.02 7.03 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 within 10 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.choosing;
(b) In in the event that the indemnifying party, by the 30th 20th day after receipt of notice of any such claim (or, if earlier, by the 10th tenth day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims claim at any time prior to settlement, compromise or final determination thereof., provided that the indemnifying party shall be given at least 15 days prior written notice of the effectiveness of any such proposed settlement or compromise; and
(c) Anything anything in this Section 6.03 7.04 to the contrary notwithstandingnotwithstanding (i) if there is a reasonable probability that a claim may materially and adversely affect the indemnifying party other than as a result of money damages or other money payments, the indemnifying party shall not have the right, at its own cost and expense, to compromise or settle any claim such claim, but (ii) the indemnifying party shall not, without the prior written consent of the party to be indemnified unless such settlement involves only indemnified, settle or compromise any claim or consent to the payment entry of money and any judgment which does not include as an unconditional term thereof the giving by the claimant provides or the plaintiff to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Sources: Asset Purchase Agreement (GHS Inc)
Conditions of Indemnification. The respective obligations and liabilities of Seller Oak Tree, Acorn and Riverside, on the one hand, and Purchaser on the other hand (the "indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 6.1 and 6.02 hereof 6.2 with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgmentposition) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, provided that the party to be indemnified may participate in the defense with counsel of its own choice choice, the fees and expenses of which counsel shall be paid by the party to be indemnified unless (i) the indemnifying party has agreed to pay such fees and expenses, (ii) the indemnifying party has failed to assume the defense of such action or (iii) the named parties to any such action (including any impleaded parties) include both the indemnifying party and the party to be indemnified and the party to be indemnified has been advised by counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the indemnifying party (in which case, if the party to be indemnified informs the indemnifying party in writing that it elects to employ separate counsel at its own expensethe expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action on behalf of the party to be indemnified, it being understood, however, that the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for the party to be indemnified, which firm shall be designated in writing by the party to be indemnified).
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party -9- and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 to Notwithstanding the contrary notwithstandingforegoing, the indemnifying party shall not settle any claim without the consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.
(d) The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of the other.
Appears in 1 contract
Conditions of Indemnification. (a) The respective obligations and liabilities of Seller and Purchaser (the "an indemnifying party") to the other (the "party to be indemnified") under Sections 6.01 and 6.02 hereof this Agreement with respect to indemnifiable claims resulting from the assertion of liability made by third parties shall be subject to the following terms and conditions:
(ai) Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the The indemnified party to be indemnified shall give the indemnifying party written prompt notice thereof together with of any such claim (provided that a copy failure by such indemnified party to so notify the indemnifying party shall relieve the indemnifying party from the obligation to indemnify the indemnified party under this Article IX only to the extent that the indemnified party suffers actual prejudice as a result of such claim, process or other legal pleadingfailure), and the indemnifying party shall have the right right, subject to its agreement to indemnify the indemnified party, to undertake the defense thereof by representatives chosen by it and reasonably acceptable to the indemnified party; provided that, if an indemnifying party desires to reserve any rights against the indemnified party in its agreement to indemnify the indemnified party, the indemnified party may, in its sole discretion and without prejudice to its right of indemnification hereunder, undertake the defense of such claim itself and refuse to allow the indemnifying party to assume such defense;
(ii) If the indemnifying party undertakes the defense of any such claim, the indemnified party shall, (a) to the best of its own choosing ability, assist the indemnifying party, at the expense of the indemnifying party, in the defense of such claim, and shall promptly send to the indemnifying party, at the expense of the indemnifying party, copies of any documents received by the indemnified party which relate to such claim and (b) have the right to participate in the defense of such claim at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense.;
(biii) In the event that If the indemnifying party, by the 30th day within a reasonable time after receipt of notice of any such claim (orclaim, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect fails to defend the indemnified party against which such claimclaim has been asserted, the indemnified party to be indemnified will shall (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims claim at any time prior to settlement, compromise or final determination thereof.; and
(civ) Anything in this Section 6.03 Article IX to the contrary notwithstanding, (i) if there is a reasonable probability that a claim may materially and adversely affect the indemnified party other than as a result of money damages or other money payments, the indemnified party shall have the right, at its own cost and expense, to defend, compromise or settle such claim; and (ii) the indemnifying party shall not settle any claim not, without the written consent of the party to be indemnified unless such settlement involves only the payment of money and the claimant provides to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnifiedparty, which consent shall not be unreasonably withheld, settle or compromise any claim or consent to the entry of any judgment which does not include as a term thereof the giving by the claimant or the plaintiff to the indemnified party a release from all liability with respect to such claim.
(dv) The party With respect to be indemnified any Damages relating to Sellers' breach of the representations contained in Section 5.2(b), upon Sellers' payment of such Damages, Purchaser shall assign to Sellers, on an "as is" basis without representation or warranty, the uncollected portion of the accounts receivable and/or notes receivable related to such Damages.
(b) Sellers' obligations to indemnify and hold the Purchaser Group harmless against Damages are subject to, and conditioned upon, the requirement that if the Purchaser Group has a reasonable good faith basis for asserting a claim for Damages, it shall give prompt written notice to Sellers, setting forth in reasonable detail the basis of the claim and the indemnifying party will each cooperate with all amount thereof (or, if not then determinable by the Purchaser Group, a reasonable requests good faith estimate of the otheramount thereof); provided, that the failure to give notice shall not relieve the Sellers of their obligations to indemnify and hold the Purchaser Group harmless against Damages, except to the extent the Sellers are prejudiced by the Purchaser Group's failure to give notice.
Appears in 1 contract
Sources: Stock Purchase Agreement (Hayes Lemmerz International Inc)
Conditions of Indemnification. The respective ----------------------------- obligations and liabilities of Seller ▇▇▇▇▇ and Purchaser Source (herein sometimes called the "indemnifying party") to the other (herein sometimes called the "party to be indemnified") under Sections 6.01 8.02 and 6.02 .03 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) Within 20 30 days (or such earlier time as might be required to avoid prejudicing the indemnifying party's position including the entry of a default judgment) after receipt of notice of commencement of any action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a third party, the party to be indemnified shall give the indemnifying party written notice thereof together with a copy of such claim, process or other legal pleading, and the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expensechoosing.
(b) In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th tenth day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims claim at any time prior to settlement, compromise or final determination thereof.
(c) Anything in this Section 6.03 8.04 to the contrary notwithstanding, (i) if there is a reasonable probability that a claim may materially and adversely affect the indemnifying party other than as a result of money damages or other money payments, the indemnifying party shall not have the right, at its own cost and expense, to compromise or settle any claim such claim, but (ii) the indemnifying party shall not, without the prior written consent of the party to be indemnified unless such settlement involves only indemnified, settle or compromise any claim or consent to the payment entry of money and any judgment that does not include as an unconditional term thereof the giving by the claimant provides or the plaintiff to the party to be indemnified a release from all liability in respect of such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the prior consent of the party to be indemnified, which consent shall not be unreasonably withheld.
(d) The party to be In connection with any such indemnification, the indemnified and the indemnifying party will each cooperate with in all reasonable requests of the otherindemnifying party.
Appears in 1 contract
Sources: Master Reorganization Agreement (National Data Corp)