Defense. (a) Promptly after the receipt by any person entitled to indemnification under Section 9.2 and 9.3 herein of notice of (i) any claim or (ii) the commencement of any action or proceeding, such party (the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"), give such Indemnifying Party written notice of such claim or the commencement of such action or proceeding and shall permit the Indemnifying Party to assume the defense of any such claim or any proceeding or litigation resulting from such claim, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is a conflict of interest between it and the (b) If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved Party, the obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Party shall direct and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party. (c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld. If no settlement of the claim or litigation is made, the Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of any judgment rendered with respect to such claim or in such litigation and of all expenses, legal or otherwise, as incurred by the Aggrieved Party in the defense against such claim or litigation. (d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitations.
Appears in 1 contract
Defense. (a) Promptly after The Indemnifying Party shall have the receipt by any person entitled right to indemnification under Section 9.2 and 9.3 herein direct, through counsel of notice of (i) any claim its own choosing, the defense or (ii) the commencement settlement of any action or proceedingproceeding brought against the Indemnified Party in respect of Third Party Claims; provided, such party (the "Aggrieved Party") willhowever, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"), give such Indemnifying Party written notice of such claim or the commencement of such action or proceeding and shall permit that the Indemnifying Party shall not settle any matter without obtaining the Indemnified Party's prior consent thereto if such settlement provides for any remedy other than the payment of money damages or that does not provide for a full release of the Indemnified Party or, regardless of the terms of such settlement, if the Indemnifying Party disputes its liability with respect to the Third Party Claim. If the Indemnifying Party elects to assume the defense of any such claim or any proceeding or litigation resulting from proceeding, the Indemnified Party may participate in such claim, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is a conflict of interest between it and the
(b) defense at its own expense. If the Indemnifying Party fails to defend or, after commencing or undertaking any such defense, fails to prosecute or withdraws from such defense other than as a result of a settlement, the Indemnified Party shall have the right to direct, at the Indemnifying Party's sole cost and expense, through counsel of its own choosing, the defense or settlement of any such action or proceeding; provided, however, that if the Indemnified Party assumes the defense of any such claim or litigation resulting therefrom proceeding pursuant to this Section 10.3 and proposes to settle such claim or proceeding prior to a final judgment thereon or to forego appeal with counsel reasonably acceptable to respect thereto, then the Aggrieved Party, the obligations of Indemnified Party shall give the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom prompt written notice thereof and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Party shall direct have the right to participate in and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party.
(c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld) to the settlement or assume or reassume the defense of such claim or proceeding. If no settlement Notwithstanding the foregoing provisions of this Section 10.3(b), if the Indemnifying Party disputes its liability to the Indemnified Party and if such dispute is resolved in favor of the claim or litigation is madeIndemnifying Party by final, nonappealable order of a court of competent jurisdiction, the Indemnifying Party shall promptly not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.3(b), and the indemnified Party shall reimburse the Aggrieved Indemnifying Party in full for the amount of any judgment rendered with respect to such claim or in such litigation all costs and of all expenses, legal or otherwise, as expenses incurred by the Aggrieved Indemnifying Party in connection with such Third Party Claim. The party directing the defense shall pursue such defense diligently and promptly. The parties shall cooperate in the defense against of all Third Party Claims. In connection with the defense of any Third Party Claim, each party shall make available to the party controlling such claim defense any books, records or litigationother documents within its control that are reasonably requested in the course of or necessary or appropriate for such defense.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitations.
Appears in 1 contract
Defense. (a) Promptly Each Party shall notify the other in writing of any allegations it receives from a Third Party that the Development or Commercialization of the Product or use of the Licensed Technology infringes the intellectual properly rights of such Third Party. Such notice shall be provided promptly, but in no event after more than fo1ty five (45) days, following receipt of such allegations.
(b) In the event that a Party receives notice that it or any of its Affiliates have been individually named as a defendant in a legal proceeding by a Third Party alleging infringement of a Third Party's patents or other intellectual property right as a result of the Development or Commercialization of the Product or use of the Licensed Technology, such Party shall immediately notify the other Party in writing and in no event notify such other Party later than forty five (45) days after the receipt by any person entitled to indemnification under Section 9.2 and 9.3 herein of such notice. Such written notice of (i) any claim or (ii) the commencement shall include a copy of any action summons or proceeding, such party complaint (or the "Aggrieved Party"equivalent thereof) will, if claim received regarding the foregoing. Each Party shall asse1i and not waive the joint defense privilege with respect thereto is made against to all communications between the Parties reasonably the subject thereof. In such event, the Parties shall agree how best to mitigate or control the defense of any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (such legal proceeding; provided however, that EDESA shall assume the "Indemnifying Party"), give such Indemnifying Party written notice primary responsibility for the conduct of such claim or the commencement of such action or proceeding and shall permit the Indemnifying Party to assume the defense of any such claim or that is specific to the Field, at EDESA's expense, and YISSUM shall assume the primary responsibility for the conduct of the defense of any proceeding or litigation resulting from other such claim, unless at YlSSUM's expense. Notwithstanding the action or proceeding seeks an injunction or other similar relief against foregoing, YISSUM may forego assuming the Aggrieved Party or there is a conflict primary responsibility for the conduct of interest between it and the
(b) If the Indemnifying Party assumes the defense of any such claim outside the Field, in which case EDESA shall have the right, but not the obligation, to assume such primary responsibility at its own expense. The Party that does not assume primary responsibility for the conduct of the defense shall have the right, but not the obligation, to participate and be separately represented in any such suit at its sole option and at its own expense. Each Party shall reasonably cooperate with the Party conducting the defense of the claim. If a Party or litigation resulting therefrom with counsel reasonably acceptable any of its Affiliates have been individually named as a defendant in a legal proceeding relating to the Aggrieved Partyalleged infringement of a Third Pa1ty's patents or other intellectual property right as a result of the Development or Commercialization of the Product, the obligations of the Indemnifying other Party as to such claim shall be limited allowed to taking all steps necessary join in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participateaction, at its own expense, in the defense of such claim or litigation provided that the Indemnifying Party shall direct and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party.
(c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld. If no settlement of the claim or litigation is made, the Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of any judgment rendered with respect to such claim or in such litigation and of all expenses, legal or otherwise, as incurred by the Aggrieved Party in the defense against such claim or litigation.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitations.
Appears in 1 contract
Defense. If the facts relating to a Loss arise out a Third Party Claim, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor shall, by giving written notice to the Indemnified Party within 15 days following its receipt of the notice of such claim, assume the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expense; provided, however, that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate therein, but the fees and expenses of such counsel shall be at the Indemnified Party's own expense, unless (a) Promptly after the receipt employment thereof has been specifically authorized by any person entitled the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to indemnification under Section 9.2 the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and 9.3 herein counsel to each of notice the Indemnified Party and the Indemnity Obligor shall have advised such parties that representation of (i) any claim both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or (iic) the commencement of any action or proceeding, such party (the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"), give such Indemnifying Party written notice of such claim or the commencement of such action or proceeding and shall permit the Indemnifying Party Indemnity Obligor has failed to assume the defense of any such claim action. Whether or any proceeding not the Indemnity Obligor defends or litigation resulting from prosecutes such claim, unless all the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is a conflict of interest between it and the
(b) If the Indemnifying Party assumes parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim or litigation resulting therefrom with counsel reasonably acceptable effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Aggrieved Party, the obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Party shall direct and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party.
(c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Indemnified Party in connection with any Loss arising out of a Third Party Claim, the defense against or settlement of such claim or litigation. No settlement of claim or litigation Indemnity Obligor shall be made subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnifying Indemnified Party, which consent shall not be unreasonably withheld. If no settlement of the claim or litigation is made, the Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of any judgment rendered with respect to such claim or in such litigation and of all expenses, legal or otherwise, as incurred by the Aggrieved Party in the defense against such claim or litigation.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitations.
Appears in 1 contract
Defense. (a) Promptly after the receipt by any person entitled to indemnification under Section 9.2 and 9.3 herein of notice of (i) any claim or (ii) the commencement of any action or proceeding, such The party (the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "“Indemnifying Party"”) shall (subject to the limitations set forth in subsection 7.2(c) below and subject to the following sentence), give at its own expense, by written notice to the Indemnified Party, assume the entire control of, subject to the right of the Indemnified Party to participate (at its expense and with counsel of its choice) in, the defense of the Third Party Claim as to which such Notice of Claim has been given. All expenses, fees, and costs associated with the defense of such Third Party Claim by the Representative on behalf of the Stockholders as Indemnifying Party written notice shall be first paid from the Escrowed Cash and then (should such amount be fully extinguished) from the proceeds from the sale of such claim or the commencement of such action or proceeding and shall permit Escrowed Shares. If the Indemnifying Party is permitted to assume the defense of any such claim or any proceeding or litigation resulting from such claim, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved a Third Party or there is a conflict of interest between it and theClaim:
(bi) If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved Party, the obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Party shall direct diligently and control in good faith defend such Third Party Claim and shall keep Indemnifying Party reasonably informed of the defense status of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not; provided, however, that in the defense of such claim or any litigation resulting therefrom, consent to entry case of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party.
(c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party settlement providing for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the consent of the Indemnifying Party, remedies other than monetary damages for which consent shall not be unreasonably withheld. If no settlement of the claim or litigation indemnification is madeprovided, the Indemnifying Party shall promptly reimburse have the Aggrieved right to approve the settlement, which approval will not be unreasonably withheld, conditioned, or delayed;
(ii) Indemnified Party shall cooperate fully in all respects with the Indemnifying Party in any such defense, compromise or settlement thereof, including, without limitation, the selection of counsel (which counsel shall be reasonably acceptable to the Indemnified Party), and Indemnified Party shall make available to the Indemnifying Party all pertinent information and documents under its control; and
(iii) for purposes of clarification, to the amount extent that Stockholders are required to act as an Indemnifying Party pursuant to this Article VII, at such time after the Escrowed Cash is fully exhausted, the Representative shall be entitled on their behalf, without reference to and regardless of any judgment rendered with respect lock ups or restrictions that would otherwise be applicable to the Escrowed Shares (and subject to applicable securities laws), to sell or pledge such claim or in such litigation and of all expenses, legal or otherwise, as incurred by Escrowed Shares at any time during the Aggrieved Party Escrow Period to assist in the defense against such claim or litigationof and/or to pay any Losses. The parties agree to take all steps necessary, including execution of subsequent documentation, in order to enable Representative to act in accordance with this Article VII.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitations.
Appears in 1 contract
Sources: Stock Purchase Agreement (Mercator Partners Acquisition Corp.)
Defense. (a) Promptly after the receipt by any person entitled to indemnification under Section 9.2 and 9.3 herein of notice of (i) any claim or (ii) the commencement of any action or proceeding, such party (the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"), give such Indemnifying Party written notice of such claim or the commencement of such action or proceeding and The Claimant shall permit the Indemnifying Party Obligor to assume the defense of such Claim and any litigation resulting therefrom (and to prosecute by way of counterclaim or third party complaint any claim against such third party arising out of or relating to the Claim in question) upon receipt by the Claimant of the Obligor's written acknowledgment of its obligation to indemnify the Claimant with respect to the Claim and its agreement to assume the defense of such Claim. After giving such notice of assumption, the Obligor shall not be liable under this Agreement for any legal or other expenses subsequently incurred by the Claimant in connection with such defense but the Obligor shall be responsible for all such expenses incurred by the Claimant in connection with the Claim prior to such assumption. Notwithstanding the foregoing, any Claimant shall be entitled to conduct its own defense at the cost and expense of the Obligor if the Claimant can establish, by reasonable evidence, that the conduct of its defense by the Obligor would reasonably be likely to prejudice the Claimant due to the nature of any claims or counterclaims presented or by virtue of a conflict between the interest of the Claimant and the Obligor. Claimant may participate in such defense at its own expense. Counsel selected by the Obligor or by the Claimant to defend any Claim shall be subject to the reasonable approval of the other party. If the Obligor fails to assume the defense of any such claim or any proceeding or litigation resulting from such claim, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is Claim as provided above within a conflict of interest between it and the
reasonable time (b) If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved Party, the obligations of the Indemnifying Party as to such claim which shall be limited to taking all steps necessary in the defense or settlement such period of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Party shall direct and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall time as will not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent reasonable judgment of the Aggrieved PartyClaimant, or result in prejudice to the rights of the Claimant) after due notice has been given of a Claim, then until such time as the Obligor shall make such assumption, the Claimant shall have the right to prosecute and conduct its own defense by counsel of its choice, and in connection therewith shall have full right to conduct the defense thereof and to enter into any settlement, except with the written consent of the Aggrieved Party.
(c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against compromise or settlement of such claim or litigation. No settlement of claim or litigation shall be made thereof without the consent of the Indemnifying Party, which consent Obligor. Such defense shall not be unreasonably withheld. If no settlement at the cost and expense of the claim Obligor if the Obligor subsequently assumes such defense as provided above, or litigation if it is made, subsequently determined that the Indemnifying Party shall promptly reimburse Obligor is or was obligated to defend or indemnify the Aggrieved Party for the amount of any judgment rendered Claimant with respect to such claim Claim. Whether or in not the Obligor chooses to so defend or prosecute such litigation and of claim, all expenses, legal or otherwise, as incurred by the Aggrieved Party parties hereto shall provide reasonable cooperation in the defense against such claim or litigationprosecution thereof.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitations.
Appears in 1 contract
Sources: Trademark License Agreement (Valuevision International Inc)
Defense. (a) Promptly after In the receipt by any person entitled to indemnification under Section 9.2 and 9.3 herein case of notice of (i) any claim or (ii) the commencement of any action or proceedinga third party claim, such party (the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"), give such Indemnifying Party written notice of such claim or the commencement of such action or proceeding and shall permit the Indemnifying Party to assume may, at its option, control the defense of any an Indemnifiable Claim at such claim or any proceeding or litigation resulting from such claim, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is a conflict of interest between it and the
(b) If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom Party’s expense with counsel reasonably acceptable satisfactory to the Aggrieved Indemnified Party. Notwithstanding the foregoing, the obligations Indemnified Party shall have the right to retain counsel of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, its choice at its expense, own expense and participate in the defense of such claim or litigation provided the Indemnifiable Claim; provided, however, that the Indemnifying Party shall direct pay the fees and disbursements of such separate counsel if (1) the employment of such separate counsel has been specifically authorized in writing by the Indemnifying Party; or (2) the named parties to the proceeding in which such claim, demand, action or cause of action has been asserted include both the Indemnifying Party and such Indemnified Party and, in the reasonable judgment of counsel to such Indemnified Party, there exists one or more good faith defenses that may be available to the Indemnified Party that are in conflict with those available to the Indemnifying Party or that the Indemnifying Party and Indemnified Party have actual material conflicting interests with respect to such claim, demand, action or course of action. Notwithstanding the foregoing, the Indemnifying Party shall not be liable for the fees and disbursements of more than one counsel for all Indemnified Parties in connection with any one proceeding or any similar or related proceedings arising from the same general allegations or circumstances. If the Indemnifying Party does not assume such defense or the Indemnifying Party notifies the Indemnified Party within thirty days that it will not assume such defense, the Indemnified Party may control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books may settle the claim on behalf of and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party.
(c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the consent account and risk of the Indemnifying Party, which consent who shall not be unreasonably withheldbound by the result. If no settlement In all cases, the party without the right to control the defense of the claim or litigation is made, the Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of any judgment rendered with respect to such claim or in such litigation and of all expenses, legal or otherwise, as incurred by the Aggrieved Party Indemnifiable Claim may participate in the defense against such claim or litigationat its own expense, subject to the second sentence of this paragraph.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitations.
Appears in 1 contract
Sources: Share and Publication Rights Purchase Agreement (Telecomunicaciones De Puerto Rico Inc)
Defense. (a) Promptly after the receipt by any person entitled to indemnification under Section 9.2 5.1 and 9.3 herein 5.2 of this Agreement of notice of (i) any claim or (ii) the commencement of any action or proceeding, such party (the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Stock Purchase Agreement - Page 10 ------------------------
Section 9.2 5.1 and 9.3 herein 5.2 of this Agreement (the "Indemnifying Party"), give such Indemnifying Party written notice of such claim or the commencement of such action or proceeding and shall permit the Indemnifying Party to assume the defense of any such claim or any proceeding or litigation resulting from such claim, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is a conflict of interest between it and thethe Indemnifying Party in the conduct of the defense of such action. Failure by the Indemnifying Party to notify the Aggrieved Party of its election to defend any such proceeding or action within a reasonable time, but in no event more than 15 days after written notice thereof shall have been given to the Indemnifying Party, shall be deemed a waiver by the Indemnifying Party of its right to defend such action.
(b) If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved Party, the obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Party shall direct and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party.
(c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld. If no settlement of the claim or litigation is made, the Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of any judgment rendered with respect to such claim or in such litigation and of all expenses, legal or otherwise, as incurred by the Aggrieved Party in the defense against such claim or litigation.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the one-year period of following the applicable statute of limitations.Closing Date unless otherwise provided herein. Stock Purchase Agreement - Page 11 ------------------------
Appears in 1 contract
Defense. The procedures to be followed by any party with respect to indemnification hereunder regarding claims by third persons shall be as follows: 49
(a) Promptly after the receipt by any person entitled to indemnification under Section 9.2 and 9.3 herein party of notice of (i) any claim or (ii) the commencement of any action or proceedingthe assertion of any claim by a third person which the party receiving such notice has reason to believe may result in a claim by it for indemnity pursuant to this Agreement, such party (the each, an "Aggrieved Indemnified Party") will, if shall give a notice of such action or claim with respect thereto is made to the other party against any party obligated to provide whom indemnification pursuant to Section 9.2 and 9.3 herein hereto is sought (the each, an "Indemnifying Party"), give such Indemnifying Party written notice of such claim or setting forth in reasonable detail the commencement nature of such action or proceeding and claim, including copies of any written correspondence from such third party to such Indemnified Party. The failure to give notice as required by the immediately preceding sentence shall permit not result in a waiver of any right to indemnification hereunder except to the extent the Indemnifying Party to is actually and materially prejudiced by reason of such failure or delay. The indemnifying Party may, at its own expense, assume and control the defense of any claim for which it has received notice in accordance with this Section 13.5 and notify the Indemnified Party of such claim assumption. The Indemnified Party shall be entitled to participate therein after such assumption, the costs of such participation following such assumption to be at its own expense. Upon assuming such defense, the Indemnifying Party shall have full rights to enter into any monetary compromise or any proceeding or litigation resulting from settlement which is dispositive of the matters involved; provided, however, that no such claimsettlement shall be made without the prior written consent of the Indemnified Party, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is a conflict of interest between it and thewhich shall not be unreasonably withheld;
(b) If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved Party, the obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Party shall direct and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party.
(c) If the Indemnifying Party shall does not assume the defense of any such claim or litigation resulting therefrompromptly after receiving notice thereof by the Indemnified Party, the Aggrieved Indemnified Party may defend against assume and control the defense of and contest such claim or litigation in such manner as action with counsel chosen by it may deem appropriate and reasonably satisfactory to approved by the Aggrieved Indemnifying Party, which approval shall not be unreasonably withheld. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party be entitled to participate in connection with the defense against or settlement of such claim action, the cost of such participation to be at its own expense. The Indemnifying Party shall be obligated to pay the reasonable attorneys' fees and expenses of the Indemnified Party to the extent that such fees and expenses relate to claims as to which indemnification is due under this Section 13.5(b). The Indemnified Party shall have full rights to dispose of such action and enter into any monetary compromise or litigation. No settlement; provided, however, that no such settlement of claim or litigation shall be made without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. If no settlement of the claim or litigation is made, ; and
(c) Both the Indemnifying Party and the Indemnified Party shall promptly reimburse reasonably cooperate fully (but not including the Aggrieved Party for the amount waiver of any judgment rendered privileged communication) with respect to one another in connection with the defense, compromise or settlement of any such claim or in such litigation and of all expenses, legal or otherwise, as incurred by the Aggrieved Party in the defense against such claim or litigationaction.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitations.
Appears in 1 contract
Defense. (a) Promptly after In the receipt by event any person entitled or entity not a party to this Agreement shall make a demand or claim, file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, then the Indemnified Party shall promptly notify the Indemnifying Party of the demand, claim or lawsuit. Within fifteen (15) days after delivery of the Indemnification Notice to the Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who shall conduct the defense of such demand, claim or lawsuit shall be approved by the Indemnified Party whose approval shall not unreasonably be withheld or delayed. The Indemnified Party shall have the right, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification under Section 9.2 and 9.3 herein of notice of may be sought hereunder; provided, however, if (i) the named Parties to any claim such proceeding (including any impleaded Parties) include both the Indemnifying Party and the Indemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between them (other than differing interests associated with an Indemnifying Party’s obligation to indemnify), or (ii) the commencement employment of any action or proceeding, counsel by such party (Indemnified Party has been authorized in writing by the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"), give such Indemnifying Party written notice of such claim or the commencement of such action or proceeding and shall permit (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of any such claim or any proceeding or litigation resulting from such claim, unless action within fifteen (15) days after delivery of the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is a conflict of interest between it and the
(b) If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved PartyIndemnification Notice; then, the obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Indemnified Party shall direct have the right to retain its own counsel at the sole cost and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party.
(c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the consent expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, shall consent shall not be unreasonably withheld. If no to entry of any judgment or enter into any settlement without the consent of the claim or litigation is made, Indemnified Party. In the event that the Indemnifying Party shall promptly reimburse fail to respond within 15 days after delivery of the Aggrieved Indemnification Notice, the Indemnified Party for may retain counsel and conduct the amount defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide an Indemnification Notice shall not limit the rights of any judgment rendered with respect party to such claim or in such litigation and of all expensesindemnification, legal or otherwise, as incurred by except to the Aggrieved extent that the Indemnifying Party in the defense against such claim or litigationis actually prejudiced thereby.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitations.
Appears in 1 contract
Defense. (a) Promptly after An indemnifying Party shall, except as provided in the receipt by immediately following sentence and the last sentence of this paragraph, assume the defense of such Claim, with counsel reasonably satisfactory to the indemnified Party to represent the indemnified Party in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any person entitled such proceeding, any indemnified Party shall have the right to indemnification under Section 9.2 retain its own counsel and 9.3 herein participate in the defense of notice such Claim, but the fees and expense of such counsel shall be at the expense of such indemnified Party unless: (i) any claim the indemnifying Party and the indemnified Party shall have mutually agreed to the retention Exhibit 10.103 of such counsel; or (ii) the commencement of any action or proceeding, such party (the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated named Parties to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"), give such Indemnifying Party written notice of such claim or the commencement of such action or proceeding and shall permit the Indemnifying Party to assume the defense of any such claim proceeding (including any impleaded parties) include both the indemnifying Party and the indemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual or any proceeding or litigation resulting from such claim, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there potential differing interests between them. It is a conflict of interest between it and the
(b) If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved Party, the obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided agreed that the Indemnifying Party shall direct and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying indemnifying Party shall not, in respect of the legal expense of any indemnified Party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurred. The indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying Party agrees to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent of the indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than the payment of money, (B) involves any finding or admission of any violation of any Law or any of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such claim Claim; or any litigation resulting therefrom(3) in case of Customer, consent pursuant to entry of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved PartySection 20.4.
(c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld. If no settlement of the claim or litigation is made, the Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of any judgment rendered with respect to such claim or in such litigation and of all expenses, legal or otherwise, as incurred by the Aggrieved Party in the defense against such claim or litigation.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitations.
Appears in 1 contract
Defense. (a) Promptly after If the receipt facts pertaining to a Loss by a Buyer Indemnified Party or a Company Indemnified Party, as the case may be, arise out of the claim of any person entitled to indemnification under Section 9.2 and 9.3 herein of notice of (i) third party, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the applicable Indemnifying Party may assume the defense or (ii) the commencement prosecution thereof by written notice to such Buyer Indemnified Party or Seller Indemnified Party, including the employment of any action counsel or proceedingaccountants reasonably satisfactory to such Buyer Indemnified Party or Seller Indemnified Party, such party (at the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"), give 's cost and expense. Such Buyer Indemnified Party or Seller Indemnified Party shall have the right to employ counsel separate from counsel employed by such Indemnifying Party written notice in any such action and to participate therein, but the fees and expenses of such claim or the commencement of counsel employed by such action or proceeding and shall permit the Indemnifying Party to assume the defense of any such claim or any proceeding or litigation resulting from such claim, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Buyer Indemnified Party or there is a conflict of interest between it and the
(b) If the Indemnifying Seller Indemnified Party assumes the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved Party, the obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Party shall direct and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or not be liable for any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party.
(c) If the Indemnifying Party shall not assume the defense settlement of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made effected without the consent of the Indemnifying Partyits prior written consent, which consent shall not be unreasonably withheld. If no The Indemnifying Party shall not agree to a settlement of any claim without the claim prior written consent of the Buyer Indemnified Party or litigation is madeSeller Indemnified Party, as the case may be, which consent will not be unreasonably withheld. Whether or not the Indemnifying Party chooses to so defend or prosecute such claim, all the parties hereto shall promptly reimburse the Aggrieved Party for the amount of any judgment rendered with respect to such claim or in such litigation and of all expenses, legal or otherwise, as incurred by the Aggrieved Party cooperate in the defense against or prosecution thereof and shall furnish such claim or litigation.
(d) records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice and remedies of the claim has been made and delivered within Buyer Indemnified Party or Seller Indemnified Party, as the period of the applicable statute of limitationscase may be.
Appears in 1 contract
Defense. If any civil or administrative action that might reasonably be expected to result in an Indemnifiable Claim (a) Promptly after the receipt by any person entitled to indemnification under Section 9.2 and 9.3 herein of notice of (i) any claim or (ii) the commencement of any action or proceeding, such party (the an "Aggrieved PartyAction") willis asserted or threatened by a third party against any Indemnified Party, the Indemnifying Party may elect to control the defense thereof with experienced counsel reasonably satisfactory to the Indemnified Party. Notwithstanding the foregoing, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"), give such Indemnifying Party written within fifteen (15) days after receipt of a notice of such claim or Action, fails to give written notice to the commencement of such action or proceeding and shall permit Indemnified Party that the Indemnifying Party to assume is undertaking the defense thereof or thereafter fails to timely assume such defense, then the Indemnified Party shall have the right to defend, compromise or settle the Action for the account of any the Indemnifying Party. An assertion by the Indemnifying Party of a reservation of rights with respect to such claim or any proceeding or litigation resulting from Action shall not constitute a failure to give written notice that it shall undertake such claim, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is a conflict of interest between it and the
(b) defense. If the Indemnifying Party assumes control of the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved Partyin an Action, the obligations of the Indemnifying Party as to such claim shall be limited to taking it will take all steps necessary in the defense defense, prosecution, or settlement of such claim or litigation resulting therefrom and to holding will hold the Aggrieved Indemnified Party harmless from and against any losses, damages and liabilities all Losses caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Party shall direct and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defenseAction. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, will not consent to the entry of any judgment, judgment or enter into any settlement except with the written consent of the Aggrieved Indemnified Party; provided, or enter into any settlementhowever, except with that the written consent of the Aggrieved Party.
(c) If the Indemnifying Indemnified Party shall not assume be required if all of the defense following conditions are met: (i) the terms of the judgment or proposed settlement include as an unconditional term thereof the giving to the Indemnified Party by the third party of a release of the Indemnified Party from all liability in respect of such Action; (ii) there is no finding or admission of (A) any violation of law by the Indemnified Party (or any affiliate thereof), and (B) any violation of the rights of any such claim other person; (iii) the judgment or litigation resulting therefrom, settlement will have no effect on any other Action or claims of a similar nature that may be made against the Aggrieved Indemnified Party may defend against such claim (or litigation any affiliate thereof); and (iv) the sole form of relief is monetary damages which are paid in such manner as it may deem appropriate and reasonably satisfactory to full by the Aggrieved Indemnifying Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with conduct the defense against or settlement of such claim or litigationthe Action actively and diligently, and the Indemnified Party will provide reasonable cooperation in the defense of the Action. No settlement In all cases, the party that is not assigned the right to control the defense shall have the right to participate in the defense of claim or litigation shall be made without the consent Action at its own expense, subject to the reasonable direction of the other party. Each of the Indemnifying PartyParty and the Indemnified Party shall give all reasonable assistance to the other party in connection therewith. In any case, which consent shall not be unreasonably withheld. If no settlement of the claim or litigation is madeIndemnified Party shall, subject to Section 12.5, make available to the Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of any judgment rendered with respect and its attorneys, accountants, employees, agents, advisors and consultants, at reasonable times during normal business hours, all books, records, documents, employees, agents, advisors and consultants under its control and relating to such claim Action or in such litigation and other matter as to which the Indemnified Party is or was required to give notice. The party having control of all expenses, legal or otherwise, as incurred by the Aggrieved Party in the defense against such claim or litigation.
(d) The rights to indemnification hereunder of an Action shall apply to claims made by either party against notify the other whereby written notice party of the claim has been made and delivered within the period of the applicable statute of limitationsevery proposal, oral or written, for settlement, which it receives or makes.
Appears in 1 contract
Defense. (a) Promptly after If the receipt by any person entitled to indemnification facts presumably constitute a Claim under Section 9.2 and 9.3 herein of notice of (i) any claim or (ii) the commencement of any action or proceedingthis Agreement, such party (the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"), give such Indemnifying Party written notice of such claim or the commencement of such action or proceeding and shall permit the Indemnifying Party shall be entitled to assume the defense or the legal proceeding thereof, by means of a written notice addressed to the Protected Parties, including the hiring of counsel or accountants, at its own cost and expense. Each one of the Protected Parties shall have the right to use counsel independently from counsel retained by the Indemnifying Party, in any such claim or any proceeding or litigation resulting from such claim, unless legal action and to participate in it. The fees and expenses of counsel retained by the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is a conflict of interest between it and theProtected Parties shall be at all times for its exclusive account.
(b) If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved Party, the obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Party shall direct and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party.
(c) If the Indemnifying Party shall does not assume the defense or legal proceeding of any such claim a Claim within (i) fifteen (15) days from the notice thereof (either provided by ANDINA or litigation resulting therefromby CMF) or (ii) within the period in which it is necessary to make a defense in a legal proceeding, whichever is the lesser, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwiseProtected Parties, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation case may be, shall be made entitled to settle, compromise or agree upon a conciliation with respect to that claim, without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld. If no settlement of the claim .
(c) CMF or litigation is made, the Indemnifying Party shall promptly reimburse not agree upon the Aggrieved Party for the amount settlement of any judgment rendered with respect to such claim which determines: (i) an indemnification that does not consist of the payment of monetary damages, or in such litigation and (ii) that could produce an adverse impact or effect on the Business or on the financial condition of CMF, without the prior written consent of all expenses, legal the Protected Parties. The Protected Parties shall not be responsible for any settlement or otherwise, as incurred conciliation of a Claim asserted by the Aggrieved Indemnifying Party in the defense against such claim or litigationCMF, without said consent.
(d) The rights Whether the Indemnifying Party elects or not to indemnification hereunder defend or submit said Claim in a legal proceeding, CMF and all the parties that execute this Agreement shall apply to claims made cooperate in the defense or legal process thereof and shall deliver the registries, information and testimonies that may be necessary and reasonably requested; and shall attend the meetings, summons, testimonials, hearings, lawsuits and appeals that may be reasonably requested in connection therewith. Whenever the law so determines, or by either party against the other whereby virtue of a written notice agreement of the claim has been made and delivered within Parties, the period Indemnifying Party may subrogate all its rights of CMF or the applicable statute of limitationsProtected Parties, as the case may be.
Appears in 1 contract
Defense. (a) Promptly after the receipt by any person entitled to indemnification under Section 9.2 The Indemnified Party and 9.3 herein of notice of (i) any claim or (ii) the commencement of any action or proceeding, such party (the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"), give such Indemnifying Party written notice of such claim or the commencement of such action or proceeding and shall permit the Indemnifying Party to assume shall cooperate with the defense party assuming the defense, compromise or settlement of any such claim or Action in accordance herewith in any proceeding or litigation resulting from manner that such claim, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is a conflict of interest between it and the
(b) party reasonably may request. If the Indemnifying Party so assumes the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved PartyAction, the obligations Indemnified Party shall have the right to employ separate counsel and to participate in (but not control) the defense, compromise, or settlement thereof, but the fees and expenses of such counsel shall be the expense of such Indemnified Party unless (a) the Indemnifying Party as has specifically agreed to pay such claim fees and expenses, (b) any relief other than the payment of money damages is sought against the Indemnified Party or (c) the Indemnified Party shall have been advised by its counsel that there may be limited one or more legal defenses available to taking all steps necessary it that are different from or additional to those available to the Indemnifying Party or that there may be a conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of the defense of such Action (in either of which cases the Indemnifying Party shall not have the right to direct the defense, compromise or settlement of such claim or litigation resulting therefrom Action on behalf of the Indemnified Party), and to holding in any such case the Aggrieved Party harmless from reasonable fees and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense expenses of such claim or litigation provided separate counsel shall be borne by the Indemnifying Party, it being understood and agreed, however, that the Indemnifying Party shall direct not be liable for the fees and expenses of more than one separate firm of attorneys at any time for the Indemnified Party together with its Affiliates, unless there shall be a conflict of interest between the Indemnified Party and an Affiliate thereof, in which case the Indemnifying Party shall not be liable for the fees and expenses of more than an aggregate of two separate firms of attorneys at any time for the Indemnified Party and its Affiliates. No Indemnified Party shall settle or compromise or consent to entry of any Judgment with respect to any such Action for which it is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party, unless the Indemnifying Party shall have failed, after reasonable notice thereof, to undertake control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful Action in connection with the defensemanner provided above in this Section 7.4. The Indemnifying Party shall not, in without the defense written consent of such claim the Indemnified Party, settle or any litigation resulting therefrom, compromise or consent to entry of any judgment, except Judgment with respect to any such Action (x) in which any relief other than the written consent payment of the Aggrieved money damages is or may be sought against any Indemnified Party, or enter into any settlement, except with (y) that does not include as an unconditional term thereof the written consent of the Aggrieved Party.
(c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred giving by the Aggrieved claimant, party conducting such investigation, plaintiff or petitioner to such Indemnified Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld. If no settlement of the claim or litigation is made, the Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of any judgment rendered a release from all liability with respect to such claim or in such litigation and of all expenses, legal or otherwise, as incurred by the Aggrieved Party in the defense against such claim or litigationAction.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitations.
Appears in 1 contract
Sources: Stock Purchase and Sale Agreement (Unitedglobalcom Inc)
Defense. (a) Promptly after the receipt by In connection with any person entitled claim which may give rise to indemnification under Section 9.2 and 9.3 herein indemnity hereunder resulting from or arising out of notice of (i) any claim or (ii) legal proceeding by a person other than the commencement of any action or proceedingIndemnified Party, such party (the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"), give such Indemnifying Party written notice at the sole cost and expense of such claim or the commencement of such action or proceeding and shall permit the Indemnifying Party (or, in the case of the Stockholders' Representative, at the sole cost and expense of the Stockholders), may, upon written notice to the Indemnified Party, assume the defense of any such claim or any legal proceeding if the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party (or litigation resulting from in the case of the Stockholders' Representative, the Stockholders) to indemnify the Indemnified Party with respect to all elements of such claim, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is a conflict of interest between it and the
(b) . If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom with legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Aggrieved Party, Indemnified Party to conduct the obligations defense of such claims or legal proceedings and at the sole cost and expense of the Indemnifying Party as to such claim (or in the case of the Stockholders' Representative, the sole cost and expense of the Stockholders) shall be limited to taking take all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Party shall direct and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defensethereof. The Indemnifying Party shall notnot consent to a settlement of, in or the defense entry of any judgment arising from, any such claim or any litigation resulting therefromlegal proceeding, consent to entry of any judgment, except with without the prior written consent of the Aggrieved PartyIndemnified Party (which consent shall not be unreasonably withheld or delayed). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, or enter into any settlement, except with the written consent of the Aggrieved Party.
(c) its own counsel and at its own expense. If the Indemnifying Party shall does not assume the defense of any such claim or litigation resulting therefrom, therefrom within 30 days after the Aggrieved date such claim is made: (a) the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expensesappropriate, legal or otherwiseincluding, as incurred by the Aggrieved Party in connection with the defense against or settlement of but not limited to, settling such claim or litigation. No settlement , after giving notice of claim or litigation shall be made without the consent of same to the Indemnifying Party, which consent on such terms as the Indemnified Party may deem appropriate, and (b) the Indemnifying Party shall be entitled to participate in (but not be unreasonably withheldcontrol) the defense of such action, with its counsel and at its own expense (or in the case of the Stockholders' Representative, at the expense of the Stockholders). If no settlement the Indemnifying Party (or, in the case of the Stockholders' Representative, the Stockholders) thereafter seeks to question the manner in which the Indemnified Party defended such third party claim or litigation is madethe amount or nature of any such settlement, the Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of any judgment rendered with respect to such claim or in such litigation and of all expenses(or, legal or otherwise, as incurred by the Aggrieved Party in the defense against such claim or litigation.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice case of the claim has been made and delivered within Stockholders, the period Stockholders' Representative) shall have the burden to prove by a preponderance of the applicable statute of limitationsevidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.
Appears in 1 contract
Sources: Stock Purchase Agreement (Advanced Energy Industries Inc)
Defense. (a) Promptly after the receipt by any person entitled to indemnification under Section 9.2 and 9.3 herein of notice of (i) any claim or (ii) In the commencement case of any action or proceedinga third party claim, such party (the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"), give such Indemnifying Party written notice of such claim or the commencement of such action or proceeding and shall permit the Indemnifying Party may participate in the defense thereof and, if it so chooses and irrevocably acknowledges its obligation to assume indemnify the Indemnified Party therefor, control the defense of any such claim or any proceeding or litigation resulting from such claiman Indemnifiable Claim with counsel reasonably satisfactory to the Indemnified Party; provided, unless how- ever, that if the action or proceeding seeks an injunction or other similar relief against the Aggrieved Indemnified Party or there is reasonably believes that (x) a material conflict of interest between the Indemnified Party and the Indemnifying Party with respect to the claim or its defense exists or is likely to develop during the pendency of the litiga- tion, and as a result of such conflict, the Indemnifying Party’s incentive to defend such claim could reasonably be expected to be materially compromised, or (y) the claim raises serious issues regarding the integrity or moral character of the Indemni- fied Party or any of its Affiliates, or of its of their senior management, in its or their capacity as such (which issues are a fundamental element of the claim) then the In- demnified Party shall be entitled to control the defense of the claim in accordance with paragraph (b)(ii) of this Section 9.3, it being understood that the mere allegation of fraud, willful misconduct, bad faith, malfeasance or any similar such claim as part of multiple claims constituting an Indemnifiable Claim, shall not be deemed, in and the
of itself, to provide the basis for the Indemnified Party’s rights as set forth in this clause (b) y). In all cases, the party without the right to control the defense of the In- demnifiable Claim may participate in the defense at its own expense. In the case of a third party claim, the Indemnifying Party shall inform the Indemnified Party within 20 days of receiving the written notice seeking indemnification whether the party elects to control the defense and irrevocably acknowledges its obligation to indem- nify the Indemnified Party therefor. The Indemnifying Party shall be liable for the reasonable fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof, provided that it either irrevocably acknowledges in writing its indemnity obligations with respect to the Indemnity Claim or it is determined by a court of competent juris- diction that it is obligated hereunder to provide such indemnification. If the Indemni- fying Party disputes its liability with respect to a potential Indemnifiable Claim or the amount thereof (whether or not it desires to defend the Indemnified Party against a third party claim), the parties shall endeavor in good faith to settle such dispute. The Indemnifying Party shall not settle or compromise a third party claim or legal pro- ceeding without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, delayed or conditioned; provided that such prior written consent shall not be required with respect to any Indemnifiable Claim that relates to any item referred to in Sections 9.1(c), (d), (e), (f), (g), (h), or (i), except with respect to any Indemnifiable Claim relating to Remediation of Hazardous Sub- stances that is covered by Section 5.18 shall remain subject in all respects to the terms of Section 5.18. The Indemnified Party shall not settle or compromise a third party claim for which it is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. If the Indemnifying Party assumes does not assume the defense de- fense of any such third party claim or litigation resulting therefrom with counsel reasonably acceptable to within 20 days after the Aggrieved date it receives notice of such claim from the Indemnified Party, the obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Party shall direct and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party.
(c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expensesap- propriate, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of including settling such claim or litigation, after giving notice to the Indem- nifying Party, on such terms as the Indemnified Party may deem appropriate. No Not- withstanding anything in this Section 9.3 to the contrary, if for any reason (for example the effect of the limitations set forth in Sections 9.4 or 9.5 or evidence that an Indemnifiable Loss may be attributable to events before or after Closing) there is any uncertainty whether an Indemnifiable Claim will be for the account of the Seller Indemnitors or Purchaser, the parties will (A) cooperate in good faith to determine whether an Indemnifiable Claim will be for the account of the Seller Indemnitors or Purchaser, (B) until such uncertainty is resolved to the mutual satisfaction of the par- ties, jointly determine who will control the defense and settlement of claim any such In- demnifiable Claim and how such defense and settlement will be handled, (C) ▇▇▇▇▇▇- ate with each other in the defense and settlement of such Indemnifiable Claim and the exchange of information relevant thereto, (D) unless otherwise agreed, share the out- of-pocket costs of such defense and settlement (including the costs of investigation, response and mitigation) equally until the parties’ respective rights to indemnification for such costs are resolved, and (E) treat the defense and settlement of such Indemni- fiable Claim as a joint and common defense, including any joint defense agreement which may be entered into by the parties.
(ii) In the case of claims described in the proviso to the first sentence of Section 9.3(b)(i), the Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise or litigation settle such claim, at the expense of the In- demnifying Party, but the Indemnifying Party will not be bound by any compromise or settlement effected without its consent (which consent shall not be unreasonably withheld, conditioned or delayed). The Indemnified Party shall conduct the defense in good faith and in a commercially reasonable manner, and shall inform the Indem- nifying Party periodically, or upon the Indemnifying Party’s reasonable request, of the status of the litigation. The Indemnified Party’s choice of counsel shall be made without subject to the consent of the Indemnifying Party, which such consent shall not to be unreasonably withheldwith- held or delayed. If no settlement The Indemnifying Party may participate in the defense thereof, at its own expense. If, in order to preserve existing insurance for a claim against IPC cur- rently maintained by Dynegy, it is necessary to permit Dynegy’s insurer to conduct the defense of IPC, Purchaser will consider in good faith waiving or sharing its right to control such defense so that Dynegy’s insurance rights are not lost, subject to the condition that the insurer accepts the tender of the claim or litigation without reservation of rights. Notwithstanding anything to the contrary in this Section 9.3(b), any Indemnifiable Claim relating to Hazardous Substances that is made, the Indemnifying Party covered by Section 5.18 shall promptly reimburse the Aggrieved Party for the amount of any judgment rendered with remain subject in all respect to such claim or in such litigation and the terms of all expenses, legal or otherwise, as incurred by the Aggrieved Party in the defense against such claim or litigationSection 5.18.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitations.
Appears in 1 contract
Sources: Stock Purchase Agreement
Defense. In the event any Third Party shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters covered by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within thirty (a30) Promptly days after written notice by the receipt Indemnified Party (the “Notice”) to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel to defend any such demand, claim or lawsuit; provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, to participate in the defense of any person entitled suit, action or proceeding brought against it with respect to which indemnification under Section 9.2 and 9.3 herein of notice of may be sought hereunder; provided, if (i) the named parties to any claim such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the commencement employment of any action or proceeding, counsel by such party (Indemnified Party has been authorized in writing by the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"), give such Indemnifying Party written notice of such claim or the commencement of such action or proceeding and shall permit (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of any such claim or any proceeding or litigation resulting from such claim, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is within a conflict of interest between it and the
(b) If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved Partyreasonable time; then, the obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Indemnified Party shall direct have the right to retain its own counsel at the sole cost and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party.
(c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the consent expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent shall not be unreasonably withheldto entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If no settlement any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the claim or litigation is madeIndemnified Party, the Indemnifying Party shall promptly will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse the Aggrieved such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the amount reasonable fees and expenses of any judgment rendered with respect counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within thirty (30) days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or in such litigation and of all expenses, legal or otherwiselawsuit, as incurred it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Aggrieved Indemnifying Party in on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party’s defense against such claim or litigation.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period action is actually prejudiced by such failure. The assumption of the applicable statute defense, or the non-assumption of limitationsthe defense, by the purported Indemnifying Party will not affect such party’s right to dispute its obligation to provide indemnification hereunder.
Appears in 1 contract
Defense. If the facts pertaining to a Loss arise out of the claim of ------- any third party, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor may, by giving written notice to the Indemnified Party within 30 days following its receipt of the notice of such claim, elect to assume the defense or the prosecution of such claim, including the employment of counsel or accountants at its cost and expense; provided, however, that during the interim the Indemnified Party shall use its best efforts to take all action (anot including settlement) Promptly after reasonably necessary to protect against further damage or loss with respect to the receipt Loss; provided that such counsel or accountants shall be reasonably satisfactory to the Indemnified Party; provided that the Indemnity Obligor agrees prior to assuming such defense or prosecution of the claim that it is obligated to indemnify the Indemnified Party for the loss suffered by the Indemnified Party as a result of such claim; provided that the Indemnity Obligor can demonstrate to the reasonable satisfaction of the Indemnified Party that such Indemnity Obligor has the financial ability to satisfy such indemnity obligation; and provided that any person compromise or settlement must be reasonably approved by the Indemnified Party. Notwithstanding the foregoing, if an Indemnified Party determines in good faith that there is a reasonable probability that a claim may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to indemnification under Section 9.2 this Agreement, the Indemnified Party may, by notice to the Indemnity Obligor, assume the exclusive right to defend, compromise or settle such claim, but the Indemnity Obligor will not be bound by any determination of a claim so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and 9.3 herein to participate in such action, but the fees and expenses of notice of (i) any claim such counsel shall be at the Indemnified Party's own expense. Whether or (ii) not the commencement of any action Indemnity Obligor chooses so to defend or proceedingprosecute such claim, such party (all the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated parties to provide indemnification pursuant to Section 9.2 and 9.3 herein (this Agreement shall cooperate in the "Indemnifying Party"), give such Indemnifying Party written notice defense or prosecution of such claim or the commencement of such action or proceeding and shall permit the Indemnifying Party to assume the defense furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trials as may be reasonably requested in connection therewith. No Indemnity Obligor shall be liable for any settlement of any such claim or any proceeding or litigation resulting from such claim, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is a conflict of interest between it and the
(b) If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved Party, the obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at effected without its expense, in the defense of such claim or litigation provided that the Indemnifying Party shall direct and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the prior written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party.
(c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the consent of the Indemnifying Partyconsent, which consent shall not be unreasonably withheld. If no settlement of the claim or litigation is made, the Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of any judgment rendered with respect to such claim or in such litigation and of all expenses, legal or otherwise, as incurred by the Aggrieved Party in the defense against such claim or litigation.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitations.
Appears in 1 contract
Sources: Stock Purchase Agreement (SMTC Corp)
Defense. (a) Promptly after If the receipt by facts pertaining to a Loss arise out of the claim of any person entitled to indemnification under Section 9.2 and 9.3 herein of notice of (i) third party, or if there is any claim or against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor may, by giving written notice to the Indemnified Party within thirty (ii30) days following its receipt of the commencement of any action or proceeding, such party (the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"), give such Indemnifying Party written notice of such claim or the commencement of such action or proceeding and shall permit the Indemnifying Party claim, elect to assume the defense or the prosecution thereof, including the employment of any counsel or accountants at its cost and expense; provided, however, that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss; provided further that the reasonable costs and expenses incurred by such claim or any proceeding or litigation resulting from such claim, unless the action or proceeding seeks an injunction or other similar relief Indemnified Party in protecting against the Aggrieved Party or there is further damage will be considered a conflict of interest between it and theLoss.
(b) If The Indemnified Party shall have the Indemnifying Party assumes right to participate in such defense and to employ counsel separate from counsel employed by the defense of Indemnity Obligor in any such claim or litigation resulting therefrom with action and to participate therein, but the fees and expenses of such counsel reasonably acceptable to the Aggrieved Party, the obligations of the Indemnifying Party as to such claim shall be limited not be considered a Loss and shall be at the Indemnified Party’s own expense unless (A) the counsel selected by the Indemnity Obligor shall be unwilling or unable to taking all steps necessary in represent the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Party shall direct and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Indemnified Party, or enter into any settlement(B) a legal conflict of interest exists between the Indemnity Obligor and the Indemnified Party such that joint representation would be inappropriate, except with or (C) a court of competent jurisdiction determines that the written consent Indemnity Obligor failed or is failing to vigorously prosecute or defend such claims, in each of which cases the Aggrieved Partyreasonable fees and expenses of separate counsel engaged by the Indemnified Party shall also be a Loss for which indemnity is provided by the Indemnity Obligor.
(c) Whether or not the Indemnity Obligor chooses so to defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trials as may be reasonably requested in connection therewith. If the Indemnifying Indemnity Obligor assumes the defense or prosecution of such claim, the Indemnity Obligor shall have the right to settle the claim if such settlement involves only money damages; provided that the Indemnity Obligor shall obtain the prior written consent of the Indemnified Party before entering into any settlement of a claim if, as a result of such settlement, injunctive or other equitable relief will be imposed against the Indemnified Party or if such settlement does not expressly and unconditionally release the Indemnified Party from all liabilities and obligations with respect to such claim, without prejudice. The Indemnity Obligor shall not assume the defense be liable for any settlement of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made effected without the consent of the Indemnifying Partyits prior written consent, which consent shall not be unreasonably withheldwithheld or delayed. If no settlement In the event and to the extent of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a third party claim, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party to the extent of such payment as to any events or circumstances in respect of which the Indemnified Party may have any right or claim or litigation is made, the Indemnifying against such third party relating to such indemnified matter. The Indemnified Party shall promptly reimburse cooperate with the Aggrieved Party for Indemnity Obligor in prosecuting any subrogated claim, and the amount of any judgment rendered with respect to such claim or in such litigation reasonable fees and of all expenses, legal or otherwise, as expenses incurred by the Aggrieved Indemnified Party in providing such cooperation shall also be a Loss for which indemnity is provided by the defense against such claim or litigationIndemnity Obligor.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitations.
Appears in 1 contract
Defense. The Indemnifying Party shall have the right, at its option (asubject to the limitations set forth in Section 7.2(c) Promptly after below) and at its own expense, by written notice to the receipt by any person Indemnified Party to assume the entire control of, subject to the right of the Indemnified Party to participate (at its expense and with counsel of its choice) in, the defense, compromise or settlement of the Third Party Claim as to which such Notice of Claim has been given, and shall be entitled to indemnification under Section 9.2 appoint a recognized and 9.3 herein of notice of (i) any claim or (ii) reputable counsel reasonably acceptable to the commencement of any action or proceeding, Indemnified Party to be the lead counsel in connection with such party (the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"), give such Indemnifying Party written notice of such claim or the commencement of such action or proceeding and shall permit defense. If the Indemnifying Party is permitted and elects to assume the defense of any such claim or any proceeding or litigation resulting from such claim, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved a Third Party or there is a conflict of interest between it and theClaim:
(bi) If the Indemnifying Party assumes shall diligently and in good faith defend such Third Party Claim and shall keep the defense Indemnified Party reasonably informed of the status of such defense; provided, however, that the Indemnified Party shall have the right to approve any such claim settlement, which approval will not be unreasonably withheld, delayed or litigation resulting therefrom with counsel reasonably acceptable to conditioned; provided, that, in the Aggrieved Party, the obligations of event that the Indemnifying Party as provides prior written notice to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Indemnified Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or compromise of, or offer to settle or compromise, any judgment Third Party Claim in connection with full and the Indemnified Party withholds its consent to such claim settlement or litigation resulting therefrom. The Aggrieved Party may participate, at its expensecompromise then, in the defense of such claim or litigation provided that the Indemnifying event indemnification is ultimately determined to be owing to an Indemnified Party shall direct and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party.
(c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld. If no settlement of the claim or litigation is made, the Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of any judgment rendered hereunder with respect to such claim or Third Party Claim, in no event shall indemnification be provided to such Indemnified Party in respect of such Third Party Claim in an amount greater than the amount contained in such litigation and of settlement or compromise of, or offer to settle or compromise, such Third Party Claim; and
(ii) the Indemnified Party shall cooperate fully in all expenses, legal or otherwise, as incurred by respects with the Aggrieved Indemnifying Party in any such defense, compromise or settlement thereof, including, without limitation, the defense against such claim or litigationselection of counsel, and the Indemnified Party shall make available to the Indemnifying Party all pertinent information and documents under its control.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitations.
Appears in 1 contract
Defense. (a) Promptly Except as provided in Section 11.6, if within 10 calendar days after an Indemnitee provides Notice to the receipt by any person entitled to indemnification under Section 9.2 and 9.3 herein of notice of (i) any claim or (ii) the commencement Indemnifying Party of any action or proceedingThird Party Claim, such party (the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (Indemnitee receives Notice from the "Indemnifying Party"), give Party that such Indemnifying Party written notice of such claim or the commencement of such action or proceeding and shall permit the Indemnifying Party has elected to assume the defense of any such claim or any proceeding or litigation resulting from such claimThird Party Claim, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is a conflict of interest between it and the
(b) If the Indemnifying Party assumes will not be liable for any legal expenses subsequently incurred by the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved Party, the obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment Indemnitee in connection with such claim or litigation resulting therefromthe defense thereof. The Aggrieved Party may participate, at its expense, Indemnitee shall be entitled to participate in the defense of such claim or litigation provided that Third Party Claim and to employ counsel for such purpose at the Indemnifying sole cost and expense of Indemnitee. Each Party shall direct and control in good faith consult with the other Party regarding the defense of such claim or litigationany Third Party Claim upon the other Party’s reasonable request from time to time. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with Without the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the prior written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party.
(c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld. If no settlement of the claim or litigation is madeIndemnitee, the Indemnifying Party shall promptly reimburse will not enter into any settlement of any Third Party Claim which would lead to liability or create any financial or other obligation on the Aggrieved part of the Indemnitee for which the Indemnitee is not entitled to indemnification hereunder or which would impose any injunctive or other equitable remedy on the Indemnitee. If a firm offer is made to settle a Third Party Claim without leading to liability or the creation of a financial or other obligation on the part of the Indemnitee for which the Indemnitee is not entitled to indemnification hereunder (or which would not impose any injunctive or other equitable remedy on the Indemnitee) and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party will give Notice to the Indemnitee to that effect. If the Indemnitee fails to consent to such firm offer within 10 calendar days after its receipt of such Notice, the Indemnitee may continue to contest or defend such Third Party Claim and, in such event, the maximum liability of the Indemnifying Party to such Third Party Claim will be the amount of any judgment rendered with respect to such claim settlement offer, plus reasonable costs and expenses paid or in such litigation and of all expenses, legal or otherwise, as incurred by the Aggrieved Party in Indemnitee up to the defense against date of such claim or litigationnotice.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitations.
Appears in 1 contract
Defense. In the event that the Purchaser or the Company learns that any tax authority is taking steps towards the collection or levying of a stamp duty relating to the Bond (aa "Duty Claim") Promptly or notice thereof is delivered, sent, commenced or initiated against the Company by any taxing authority after the receipt by any person entitled to indemnification under Section 9.2 and 9.3 herein of notice of (i) any claim or (ii) the commencement of any action or proceedingdate hereof, such party (the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"), Purchaser shall give such Indemnifying Party written Seller prompt notice of such claim Duty Claim, and Seller shall have the right to assume the defense (at Seller's expense) of any such Duty Claim through counsel of Seller's own choice by so notifying Purchaser within 30 (thirty) days of the first receipt by Seller of such notice from Purchaser; provided, however, that any such counsel shall be reasonably satisfactory to Purchaser. If, under applicable standards of professional conduct, a conflict with respect to any significant issue between the Purchaser and/or the Company and Seller exists in respect of such Duty Claim, Seller shall pay the reasonable fees and expenses of such additional counsel as may be required to be retained in order to eliminate such conflict. Seller shall be liable for the fees and expenses of counsel employed by Purchaser or the commencement of such action or proceeding and shall permit the Indemnifying Party to assume Company for any period during which Seller has not assumed the defense of any such claim or Duty Claim (other than during any proceeding or litigation resulting from such claim, unless period in which Purchaser and/or the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is a conflict of interest between it and the
(b) If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable Company will have failed to the Aggrieved Party, the obligations give notice of the Indemnifying Party Duty Claim, as provided above). If Seller assumes such defense, Purchaser and/or the Company shall have the right to such claim shall be limited to taking all steps necessary participate in the defense thereof and to employ counsel, at their own expense, separate from the counsel employed by Seller, it being understood that Seller shall control such defense. If Seller chooses to defend such Duty Claim, Purchaser shall and/or shall cause the Company to cooperate in the defense thereof, which cooperation shall include, to the extent reasonably requested by Seller, the retention, and the provision to Seller, of records and information reasonably relevant to such Duty Claim, and making employees of the Company available on a mutually convenient basis to provide additional information and explanation. If Seller chooses to defend or settlement prosecute any Duty Claim, Purchaser shall and/or shall cause the Company to agree to any settlement, compromise or discharge of such claim or litigation resulting therefrom Duty Claim that Seller may recommend and to holding that, by its terms, discharges Purchaser and the Aggrieved Party harmless Purchaser Affiliates from and against any losses, damages and liabilities caused by or arising out the full amount of any settlement or any judgment liability in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participateDuty Claim; provided, at its expensehowever, in that, Seller shall not consent to, and Purchaser shall not be required to agree to, the defense of such claim or litigation provided that the Indemnifying Party shall direct and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Party, judgment or enter into any settlement, except with settlement that (i) provides for injunctive or other non-monetary relief affecting Purchaser or any Affiliate of Purchaser or (ii) does not include as an unconditional term thereof the written consent giving of the Aggrieved Party.
(c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of a release from all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld. If no settlement of the claim or litigation is made, the Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of any judgment rendered liability with respect to such claim Duty Claim. For the avoidance of doubt, Purchaser may in no event frustrate or in such litigation and cause the Company to frustrate the efforts of all expensesSeller to defend the Duty Claim, legal including, without limitation, by paying any amounts to the Austrian tax authorities or otherwise, as incurred by the Aggrieved Party in the defense against such claim or litigationotherwise settling a dispute.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitations.
Appears in 1 contract
Defense. (a) Promptly after With respect to any Proceeding as to which Indemnitee notifies the receipt Company of the commencement thereof, the Company or any Subsidiary designated by any person the Company and that has legal standing to participate in such Proceeding will be entitled to indemnification under Section 9.2 participate in the Proceeding at its own expense and 9.3 herein except as otherwise provided below, to the extent the Company or such Subsidiary so wishes, it may assume the defense thereof with counsel reasonably satisfactory to Indemnitee. After notice from the Company or such Subsidiary to Indemnitee of notice of (i) any claim or (ii) the commencement of any action or proceeding, such party (the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"), give such Indemnifying Party written notice of such claim or the commencement of such action or proceeding and shall permit the Indemnifying Party its election to assume the defense of any Proceeding, the Company will not be liable to Indemnitee under this Agreement or otherwise for any Expenses subsequently incurred by Indemnitee in connection with the defense of such claim Proceeding other than reasonable costs of investigation or any proceeding as otherwise provided below. Indemnitee shall have the right to employ Indemnitee’s own counsel in such Proceeding, but all Expenses related thereto incurred after notice from the Company or litigation resulting from such claimSubsidiary of its assumption of the defense shall be at Indemnitee’s expense unless: (i) the employment of counsel by Indemnitee has been authorized by the Company or such Subsidiary, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or (ii) Indemnitee has reasonably determined that there is may be a conflict of interest between it Indemnitee and the
(b) If the Indemnifying Party assumes the defense of any Company or such claim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved Party, the obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, Subsidiary in the defense of the Proceeding, (iii) after a Change in Control of the Company, or (iv) neither the Company nor such claim Subsidiary shall within sixty (60) calendar days (or litigation provided that the Indemnifying Party shall direct and control such shorter period of time as may be necessary to preserve any rights or defenses) in fact have employed counsel to assume the defense of such claim Proceeding, in each of which cases in clauses (i) through (iv) all Expenses of the Proceeding shall be borne by the Company; and (v) if the Company or litigation. The Aggrieved Party shall cooperate such Subsidiary has employed counsel to represent Indemnitee and make available all books other current and records reasonably necessary former directors, officers and useful in connection with employees of the defense. The Indemnifying Party shall not, Company or such Subsidiary in the defense of a Proceeding, and a majority of such claim persons, including Indemnitee, reasonably object to such counsel selected by the Company or any litigation resulting therefromsuch Subsidiary pursuant to this Section 6(a), consent then such persons, including Indemnitee, shall be permitted to entry employ one (1) additional counsel of any judgment, except with their choice and the written consent reasonable fees and expenses of such counsel shall be at the expense of the Aggrieved PartyCompany; provided, however, that such counsel shall be chosen from amongst the list of counsel, if applicable, approved by any company with which the Company or enter into any settlementsuch Subsidiary obtains or maintains directors’ and officers’ liability insurance, except if required by the terms of such insurance. In the event separate counsel is retained by an Indemnitee pursuant to this Section 6(a), the Company shall and shall cause such Subsidiary, if applicable, to cooperate fully with Indemnitee with respect to the written consent defense of the Aggrieved Party.
(c) If Proceeding, including making documents, witnesses and other reasonable information related to the Indemnifying Party defense available to Indemnitee and such separate counsel pursuant to joint-defense agreements or confidentiality agreements, as appropriate. Neither the Company nor such Subsidiary shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Company or such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwiseSubsidiary, as incurred by to which Indemnitee shall have made the Aggrieved Party determination provided for in connection with clause (ii) above or as to which the Indemnitee elects to assume the defense against or settlement after the occurrence of such claim or litigation. No settlement of claim or litigation shall be made without the consent either of the Indemnifying Party, which consent shall not be unreasonably withheld. If no settlement of the claim or litigation is made, the Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of any judgment rendered with respect to such claim or events described in such litigation and of all expenses, legal or otherwise, as incurred by the Aggrieved Party in the defense against such claim or litigationclause (iii) above.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitations.
Appears in 1 contract
Sources: Indemnification Agreement (First Midwest Bancorp Inc)
Defense. (a) Promptly after If any Proceeding referred to in Section 10.10.1 is brought against an indemnified party and it gives notice to the receipt by any person indemnifying party of the commencement of such Proceeding, the indemnifying party will, unless the claim is a Tax Claim, be entitled to indemnification under Section 9.2 and 9.3 herein of notice of participate in such Proceeding and, to the extent that it wishes (unless (i) any claim the indemnifying party is also a party to such Proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, or (ii) the commencement indemnifying party fails to provide reasonable assurance to the indemnified party of any action or proceeding, its financial capacity to defend such party (the "Aggrieved Party") will, if claim Proceeding and provide indemnification with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"such Proceeding), give such Indemnifying Party written notice of such claim or the commencement of such action or proceeding and shall permit the Indemnifying Party to assume the defense of any such claim or any proceeding or litigation resulting from such claim, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is a conflict of interest between it and the
(b) If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom Proceeding with counsel reasonably acceptable satisfactory to the Aggrieved Partyindemnified party and, after notice from the obligations indemnifying party to the indemnified party of the Indemnifying Party as its election to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in assume the defense of such claim Proceeding, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under this Section 10 for any fees of other counsel or litigation provided that the Indemnifying Party shall direct and control any other expenses with respect to the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall notProceeding, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party.
(c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as each case subsequently incurred by the Aggrieved Party indemnified party in connection with the defense against of such Proceeding, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a Proceeding, (i) it will be conclusively established for purposes of this Agreement that the claims made in that Proceeding are within the scope of and subject to indemnification; (ii) no compromise or settlement of such claim claims may be effected by the indemnifying party without the indemnified party’s consent unless (A) there is no finding or litigation. No settlement admission of claim any violation of Legal Requirements or litigation shall any violation of the rights of any Person and no effect on any other claims that may be made without against the consent of indemnified party, and (B) the Indemnifying Party, which consent shall not be unreasonably withheld. If sole relief provided is monetary damages that are paid in full by the indemnifying party; and (iii) the indemnifying party will have no settlement of the claim or litigation is made, the Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of any judgment rendered liability with respect to any compromise or settlement of such claim or claims effected without its consent. If notice is given to an indemnifying party of the commencement of any Proceeding and the indemnifying party does not, within ten days after the indemnified party’s notice is given, give notice to the indemnified party of its election to assume the defense of such Proceeding, the indemnifying party will be bound by any determination made in such litigation and of all expenses, legal Proceeding or otherwise, as incurred any compromise or settlement effected by the Aggrieved Party in the defense against such claim or litigationindemnified party.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitations.
Appears in 1 contract
Sources: Stock Purchase Agreement (Management Network Group Inc)
Defense. (a) Promptly Each Party shall notify the other in writing of any allegations it receives from a Third Party that the Exploitation of the Compound or Licensed Product in the Field in the Licensed Territory or any embodiment of any technology or intellectual property licensed by the other Party under this Agreement infringes the intellectual property rights of such Third Party. Such notice shall be provided promptly, but in no event after more than [***] following receipt of such allegations. Such written notice shall include a copy of any summons or complaint (or the receipt by any person entitled equivalent thereof) received regarding the foregoing. Thereafter, the Parties shall promptly meet to indemnification under Section 9.2 and 9.3 herein of notice of (i) any consider the claim or (ii) assertion and the commencement appropriate course of any action or proceeding, such party (the "Aggrieved Party") willand may, if claim appropriate, agree on and enter into a “common interest agreement” wherein the Parties agree to their shared, mutual interest in the outcome of such potential dispute. Each Party shall assert and not waive the joint defense privilege with respect thereto is made against any party obligated to provide indemnification pursuant all communications between the Parties.
(b) As between the Parties, ▇▇▇ shall have the first right, but not the obligation to Section 9.2 control and 9.3 herein (the "Indemnifying Party"), give such Indemnifying Party written notice of such claim or the commencement of such action or proceeding and shall permit the Indemnifying Party to assume be solely responsible for the defense of any such claim suit against ▇▇▇, at Zai’s sole cost and expense; provided, however, ▇▇▇ shall not enter into any compromise or settlement relating to such suit that (i) admits the invalidity or unenforceability of any proceeding Licensed Patents; or litigation resulting from such claim, unless the action (ii) requires abandonment of any Licensed Patents; or proceeding seeks an injunction (iii) contemplates payment or other similar relief against the Aggrieved Party action by Karuna or there is has a conflict of interest between it and the
(b) If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved Party, the obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expensematerial adverse effect on Karuna’s business, in all cases ((i) through (iii)), without obtaining the defense of such claim or litigation provided that the Indemnifying Party shall direct and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the prior written consent of the Aggrieved PartyKaruna (which consent shall not be unreasonably delayed, withheld or enter into any settlement, except with the written consent of the Aggrieved Partyconditioned).
(c) If ▇▇▇ decides not to bring such legal action subject to its first right, it shall so inform ▇▇▇▇▇▇ promptly and ▇▇▇▇▇▇ shall have the Indemnifying Party shall right, but not assume the defense of obligation, to bring and control any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party action in connection with such infringement in the defense against Licensed Territory at its own expense as it reasonably determines appropriate; provided, however, Karuna shall not enter into any compromise or settlement relating to such suit that (i) admits the invalidity or unenforceability of such claim any Licensed Patents; or litigation. No settlement (ii) requires abandonment of claim any Licensed Patents; or litigation shall be made (iii) contemplates payment or other action by ▇▇▇ or has a material adverse effect on Zai’s business, in all cases ((i) through (iii)), without obtaining the prior written consent of the Indemnifying Party, Zai (which consent shall not be unreasonably withheld. If no settlement of the claim delayed, withheld or litigation is made, the Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of any judgment rendered with respect to such claim or in such litigation and of all expenses, legal or otherwise, as incurred by the Aggrieved Party in the defense against such claim or litigationconditioned).
(d) The rights Upon the defending Party’s request and at the defending Party’s expense, the non-defending Party shall provide reasonable assistance to indemnification hereunder the defending Party for such defense and shall apply to claims made by either party against join such suit if deemed a necessary party. If the other whereby written notice non-defending Party does not join such suit, the defending Party shall keep the non-defending Party reasonably informed of the claim has been made status of such suit. The non-defending Party shall be entitled to attend any substantive meetings, hearings, or other proceedings related to such suit. The defending Party shall provide the non-defending Party with copies of all pleadings and delivered within other documents to be filed with the period court reasonably in advance and shall consider in good faith reasonable and timely input from the non-defending Party during the course of the applicable statute of limitations.suit. [***] = CERTAIN CONFIDENTIAL INFORMATION OMITTED
Appears in 1 contract
Sources: License Agreement (Zai Lab LTD)
Defense. (a) Promptly after In the receipt by any person entitled to indemnification under Section 9.2 and 9.3 herein of notice of (i) any claim event that a declaratory judgment action, cancellation, opposition or (ii) the commencement similar proceeding alleging invalidity, unenforceability or noninfringement of any action of the LICENSED PATENTS, EXISTING JOINT TECHNOLOGY PATENTS or proceedingJOINT TECHNOLOGY PATENTS claiming MONITORING TECHNOLOGY shall be brought by a THIRD PARTY against NIMCO and/or ALTEA, such party (and/or SRX, as long as SRX has rights to MONITORING TECHNOLOGY, SRX shall have the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated right to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"), give such Indemnifying Party written notice of such claim or the commencement of defend and/or settle such action or proceeding and shall permit the Indemnifying Party to assume the defense of any such claim or any proceeding or litigation resulting from such claim, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is a conflict of interest between as it and the
(b) If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable relates to the Aggrieved Partyissues of noninfringement. Without NIMCO's and/or ALTEA's knowledge and written consent, the obligations SRX may not settle issues of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense unenforceability or settlement invalidity of such claim LICENSED PATENTS, EXISTING JOINT TECHNOLOGY PATENTS or litigation resulting therefrom JOINT TECHNOLOGY PATENTS in any manner. Subject to Article 12, if SRX determines at any time that it does not desire to defend and/or settle (or continue to defend and/or settle) such action, SRX shall promptly so advise NIMCO and/or ALTEA, and NIMCO and/or ALTEA shall then have the right to holding defend and/or settle (or continue to defend and/or settle) such action at NIMCO and/or ALTEA's expense and SRX shall, without cost or delay, provide NIMCO and/or ALTEA with all unprivileged information, data, documents, and pleadings it has in its possession to enable NIMCO and/or ALTEA to defend (or continue to defend) such action. Any privileged information, such as attorney work product, attorney client communications, legal assessments, opinions or the Aggrieved Party harmless from and against any losseslike which has been, damages and liabilities caused or can be, asserted by or arising out of any settlement or any judgment in connection with SRX shall also be provided to NIMCO and/or ALTEA to the extent that such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Party shall direct and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall information will not, in the opinion of counsel for SRX, be detrimental to SRX if the privilege is lost or which can be passed from counsel for SRX to counsel for NIMCO and/or ALTEA under a confidential disclosure agreement, protective order, or other relationship which would not destroy such privilege. NIMCO and/or ALTEA shall not be liable to SRX for any costs incurred by SRX prior to SRX advising NIMCO and/or ALTEA of its decision not to defend (or continue to defend) such action. However, such action by NIMCO and/or ALTEA shall not relieve SRX of its obligations pursuant to Articles 3 and 12, including defending and indemnifying NIMCO and/or ALTEA relating to claims relating to ownership or inventorship of patents, except, however, that SRX shall not be liable for any costs of NIMCO and/or ALTEA's in defending the LICENSED PATENTS, EXISTING JOINT TECHNOLOGY PATENTS or JOINT TECHNOLOGY PATENTS pursuant to this Section 8.2. Any action referenced above pertaining solely to JOINT DELIVERY TECHNOLOGY shall be the sole responsibility of ALTEA (unless SRX has acquired right to JOINT DELIVERY TECHNOLOGY, in which case SRX shall be solely responsible), and SRX agrees to cooperate with ALTEA in its defense of such claim or any litigation resulting therefrom, consent pursuant to entry of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party.
(c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld. If no settlement of the claim or litigation is made, the Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of any judgment rendered with respect to such claim or in such litigation and of all expenses, legal or otherwise, as incurred by the Aggrieved Party in the defense against such claim or litigation.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitations.Section 8.4
Appears in 1 contract
Sources: License and Joint Development Agreement (Spectrx Inc)
Defense. (aThe Parties, working through the JSC, shall cooperate to defend any such claims under the strategy, terms and conditions as may be authorized by the JSC. The JSC shall designate one Party as the leading Party for such defense. The Parties shall make decisions with regard to such actions covered by this Section 9.6 jointly through the JSC in accordance with the provisions of Sections 2.5(b) Promptly after and 2.5(c), provided that any unresolved disputes shall not be subject to settlement by expedited arbitration and, in the receipt by any person entitled to indemnification under Section 9.2 and 9.3 herein of notice of (i) any claim or (ii) the commencement case of any unresolved dispute, each Party named as a defendant in such action or proceedingshall be entitled upon written notice to defend itself in such matter independently by counsel of its own choice and at its own expense; provided, that each Party shall inform the other Party of the progress of such party defense and, if reasonably requested by the other Party, shall reasonably cooperate with the other Party. For so long as the Parties continue to pursue such matter jointly through the JSC, all costs and expenses of any defense actions under this Section 9.6(b) shall be [*]. In any action pursued jointly by the Parties through the JSC, the non-leading Party shall reasonably cooperate with the leading Party, including if required to conduct such defense, furnishing a power of attorney. The non-leading Party shall have the right to confer, through the JSC, with the leading Party in any such defense and the leading Party shall consider in good faith such input from the non-leading Party. If either Party desires to be released from the cost-sharing obligation described above, then such Party (the a "Aggrieved Removed Party") willshall be entitled, if claim with respect thereto is made against any party obligated upon [*] prior written notice to provide indemnification pursuant the JSC, to Section 9.2 be released from sharing such costs and 9.3 herein the matter shall thereafter be handled and pursued at the discretion of the continuing Party (the a "Indemnifying Continuing Party"), give such Indemnifying Party written notice . Following the end of such claim or the commencement of such action or proceeding and shall permit the Indemnifying Party to assume the defense of any such claim or any proceeding or litigation resulting from such claim, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is a conflict of interest between it and the
(b) If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved Party[*] notice period, the obligations Continuing Party shall bear all costs and expenses for the continuation of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrommatter. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Party shall direct and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party.
(c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Removed Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with and reasonably cooperate to support the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the consent efforts of the Indemnifying Continuing Party, which consent shall not be unreasonably withheld. If no settlement of the claim or litigation is madeIn any event, the Indemnifying Removed Party shall promptly reimburse the Aggrieved Party for the amount of any judgment rendered with respect to such claim or in such litigation and of all expenses, legal or otherwise, as incurred by the Aggrieved Party in the defense against such claim or litigation.
(d) The forego its rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim separate representation in any matter from which it has been made and delivered within the period of the applicable statute of limitationswithdrawn.
Appears in 1 contract
Defense. In the event any action, suit or proceeding (aa "LEGAL ACTION") Promptly after is brought against an indemnified party, with respect to which the receipt indemnifying party may have liability under an indemnity agreement contained herein, the Legal Action shall, upon the written agreement of the indemnifying party that it is obligated to indemnify under such indemnity agreement, be defended by any person entitled the indemnifying party and such defense shall include all proceedings on appeal or for review which counsel for the defendant shall deem appropriate. The indemnified party shall have the right to indemnification under Section 9.2 be represented by counsel and 9.3 herein of notice of (i) any claim accountants, at its own expense, and shall be kept fully informed as to such Legal Action at all stages thereof whether or (ii) not it is represented by its own counsel. Until the commencement indemnifying party shall have so assumed the defense of any action Legal Action, or proceeding, such if the indemnified party shall have reasonably concluded that there are likely to be defenses available to the indemnified party that are different from or in addition to those available to the indemnifying party (in which case the "Aggrieved Party") will, if claim with respect thereto is made against any indemnifying party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"), give such Indemnifying Party written notice of such claim or the commencement of such action or proceeding and shall permit the Indemnifying Party not be entitled to assume the defense of any such claim Legal Action but shall have the right to be represented by counsel and accountants, at its own expense, and shall be kept fully informed as to such Legal Action at all stages thereof whether or any proceeding or litigation resulting from such claimnot represented by its own counsel), unless the action or proceeding seeks an injunction all legal or other similar relief against expenses reasonably incurred by the Aggrieved Party or there is a conflict indemnified party shall be borne by the indemnifying party. The indemnifying party shall make available to the indemnified party and its attorneys and accountants all books and records of interest between it the indemnifying party relating to such Legal Action and the
(b) If the Indemnifying Party assumes parties hereto agree to render to each other such assistance as they may reasonably require of each other in order to facilitate the proper and adequate defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved Party, the obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Party shall direct and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved PartyLegal Action.
(c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld. If no settlement of the claim or litigation is made, the Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of any judgment rendered with respect to such claim or in such litigation and of all expenses, legal or otherwise, as incurred by the Aggrieved Party in the defense against such claim or litigation.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitations.
Appears in 1 contract
Defense. In the event any Person not a party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of Buyer or Seller in respect of matters covered by the indemnity under this Agreement, then the party receiving notice or becoming aware of such event shall promptly notify the other party of the demand, claim or lawsuit. Within ten days after notice by the Indemnified Party (athe "Notice") Promptly after to the receipt Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit must be approved by the Indemnified Party, whose approval will not be unreasonably withheld. The Indemnified Party shall have the right, at its own expense, to participate in the defense of any person entitled suit, action or proceeding brought against it with respect to which indemnification under Section 9.2 and 9.3 herein of notice of may be sought hereunder; provided, however, if (i) the named parties to any claim such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, (ii) the commencement employment of any action or proceeding, counsel by such party (Indemnified Party has been authorized in writing by the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"), give such Indemnifying Party written notice of such claim or the commencement of such action or proceeding and shall permit (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of any such claim or any proceeding or litigation resulting from such claimaction within a reasonable time; then, unless the action or proceeding seeks an injunction or other similar relief against Indemnified Party shall have the Aggrieved Party or there is a conflict right to retain its own counsel at the sole cost and expense of interest between it the Indemnifying Party, which costs and the
(b) If expenses shall be paid by the Indemnifying Party assumes on a current basis. No Indemnified Party, in the defense of any such demand, claim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved Partylawsuit, the obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Party shall direct and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, will consent to entry of any judgment, except with the written consent of the Aggrieved Party, judgment or enter into any settlement, except with the written consent of the Aggrieved Party.
(c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld. If no settlement any Indemnified Party is advised by its chosen counsel that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party, at the election of the claim or litigation is madeIndemnified Party, the Indemnifying Party shall promptly will have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse the Aggrieved such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the amount reasonable fees and expenses of any judgment rendered with respect counsel retained by the Indemnified Party under this subparagraph (b) to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or in such litigation and of all expenses, legal or otherwiselawsuit, as incurred it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Aggrieved Indemnifying Party in on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense against such claim or litigation.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitationsaction is actually prejudiced by such failure.
Appears in 1 contract
Sources: Asset Purchase Agreement (Atlantic Technology Ventures Inc)
Defense. (a) Promptly after the receipt by any person entitled to indemnification under Section 9.2 and 9.3 herein of notice of (i) any If a third‑party action, suit, claim or demand (iia “Third Party Claim”) is involved, then, upon receipt of the commencement of any action or proceedingIndemnification Notice, such party the Indemnitor shall have fifteen (the "Aggrieved Party"15) willcalendar days after said notice is given to elect, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"), give such Indemnifying Party by written notice given to the Indemnitee, to undertake, conduct and control, through counsel of such claim or the commencement of such action or proceeding and shall permit the Indemnifying Party to assume the defense of any such claim or any proceeding or litigation resulting from such claim, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there its own choosing which is a conflict of interest between it and the
(b) If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved PartyIndemnitee and at its sole risk and expense, the obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any good faith settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that claim, and the Indemnifying Party shall direct and control the defense of such claim or litigation. The Aggrieved Party Indemnitee shall cooperate and make available all books and records reasonably necessary and useful with the Indemnitor in connection therewith; provided: (a) all settlements require the prior reasonable consultation with the defense. The Indemnifying Party shall not, in Indemnitee and the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the prior written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party.
(c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the consent of the Indemnifying PartyIndemnitee, which consent shall not be unreasonably withheld, provided that the Indemnitor may settle any such claim without the prior consent of the Indemnitee if such settlement involves the full release of the Indemnitee and the Indemnitor agrees to pay all amounts payable pursuant to such settlement, and (b) the Indemnitee shall be entitled to participate in such settlement or defense through counsel chosen by the Indemnitee (the fees and expenses of such counsel shall be borne by the Indemnitee). So long as the Indemnitor is contesting any such claim in good faith, the Indemnitee shall not pay or settle any such claim; provided, however, that notwithstanding the foregoing, the Indemnitee shall have the right to pay or settle any such claim at any time; provided, that in such event, the Indemnitee shall waive any right of indemnification 58 therefor by the Indemnitor. If no the Indemnitor does not make a timely election to undertake the good faith defense or settlement of the claim as aforesaid, or litigation is madeif the Indemnitor fails to proceed with the good faith defense or settlement of the matter after making such election, then, in either such event, the Indemnifying Indemnitee shall have the right to contest, settle or compromise the claim at its exclusive discretion, retaining its right to seek indemnification from Indemnitor. In addition, if an Indemnitee (a) determines in good faith that a Third Party Claim may materially and adversely affect it or any of its Affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, or (b) in the good faith opinion of counsel of such party concludes that there are defenses available to it that may be unavailable to, or inconsistent with or contrary to the interests of the Indemnitor, the Indemnitee may, by notice to the Indemnitor, retain the exclusive right to defend, compromise or settle such Third Party Claim, retaining its right to seek indemnification from Indemnitor. In any event, the Indemnitor and the Indemnitee shall promptly reimburse fully cooperate with each other in connection with the Aggrieved Party for the amount of any judgment rendered with respect to such claim defense, including by furnishing all available documentary or in such litigation and of all expenses, legal or otherwise, other evidence as incurred is reasonably requested by the Aggrieved Party in the defense against such claim or litigationother party.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitations.
Appears in 1 contract
Sources: Stock Purchase Agreement
Defense. (a) Promptly after If the facts relating to a Loss arise out of the claim of any third party, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor may, by giving written notice to the Indemnified Party within 15 days following its receipt by any person entitled to indemnification under Section 9.2 and 9.3 herein of the notice of such claim, elect to assume the defense or the prosecution thereof, including the employment of counsel or accountants at its cost and expense; provided, however, that during the interim the Indemnified Party shall use its commercially reasonable efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate therein, but the fees and expenses of such counsel shall be at the Indemnified Party's own expense, unless (i) any claim or the employment thereof has been specifically authorized by the Indemnity Obligor, (ii) such Indemnified Party has been advised by counsel reasonably satisfactory to the commencement of any action Indemnity Obligor that there may be one or proceeding, such party (more legal defenses available to it which are different from or additional to those available to the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 Indemnity Obligor and 9.3 herein (in the "Indemnifying Party"), give such Indemnifying Party written notice reasonable judgment of such claim counsel it is advisable for such Indemnified Party to employ separate counsel, or (iii) the commencement of such action or proceeding and shall permit the Indemnifying Party Indemnity Obligor has failed to assume the defense of any such claim action and employ counsel reasonably satisfactory to the Indemnified Party. Whether or any proceeding not the Indemnity Obligor chooses so to defend or litigation resulting from prosecute such claim, unless all the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is a conflict of interest between it and the
(b) If the Indemnifying Party assumes parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trials as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim or litigation resulting therefrom with counsel reasonably acceptable effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Aggrieved Party, the obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Party shall direct and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party.
(c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Indemnified Party in connection with any Loss arising out of a third party claim, the defense against or settlement of such claim or litigation. No settlement of claim or litigation Indemnity Obligor shall be made subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have any right or claim against such third party relating to such Loss. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnifying Indemnified Party, which consent shall not be unreasonably withheld. If no settlement of the claim or litigation is made, the Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of any judgment rendered with respect to such claim or in such litigation and of all expenses, legal or otherwise, as incurred by the Aggrieved Party in the defense against such claim or litigation.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitations.
Appears in 1 contract
Defense. (a) Promptly after If any Proceeding referred to in Section 10.9.1 is brought against an indemnified party and it gives notice to the receipt by any person indemnifying party of the commencement of such Proceeding, the indemnifying party will, unless the claim is a Tax Claim, be entitled to indemnification under Section 9.2 and 9.3 herein of notice of participate in such Proceeding and, to the extent that it wishes (unless (i) any claim the indemnifying party is also a party to such Proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, or (ii) the commencement indemnifying party fails to provide reasonable assurance to the indemnified party of any action or proceeding, its financial capacity to defend such party (the "Aggrieved Party") will, if claim Proceeding and provide indemnification with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"such Proceeding), give such Indemnifying Party written notice of such claim or the commencement of such action or proceeding and shall permit the Indemnifying Party to assume the defense of any such claim or any proceeding or litigation resulting from such claim, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is a conflict of interest between it and the
(b) If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom Proceeding with counsel reasonably acceptable satisfactory to the Aggrieved Partyindemnified party and, after notice from the obligations indemnifying party to the indemnified party of the Indemnifying Party as its election to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in assume the defense of such claim Proceeding, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under this Section 10 for any fees of other counsel or litigation provided that the Indemnifying Party shall direct and control any other expenses with respect to the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall notProceeding, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party.
(c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as each case subsequently incurred by the Aggrieved Party indemnified party in connection with the defense against of such Proceeding, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a Proceeding, (i) it will be conclusively established for purposes of this Agreement that the claims made in that Proceeding are within the scope of and subject to indemnification; (ii) no compromise or settlement of such claim claims may be effected by the indemnifying party without the indemnified party’s consent unless (A) there is no finding or litigation. No settlement admission of claim any violation of Legal Requirements or litigation shall any violation of the rights of any Person and no effect on any other claims that may be made without against the consent of indemnified party, and (B) the Indemnifying Party, which consent shall not be unreasonably withheld. If sole relief provided is monetary damages that are paid in full by the indemnifying party; and (iii) the indemnifying party will have no settlement of the claim or litigation is made, the Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of any judgment rendered liability with respect to any compromise or settlement of such claim or claims effected without its consent. If notice is given to an indemnifying party of the commencement of any Proceeding and the indemnifying party does not, within ten (10) days after the indemnified party’s notice is given, give notice to the indemnified party of its election to assume the defense of such Proceeding, the indemnifying party will be bound by any determination made in such litigation and of all expenses, legal Proceeding or otherwise, as incurred any compromise or settlement effected by the Aggrieved Party in the defense against such claim or litigationindemnified party.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitations.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Management Network Group Inc)
Defense. (a) Promptly after If the receipt by facts pertaining to a Loss arise out of the claim of any person entitled to indemnification under Section 9.2 and 9.3 herein of notice of (i) third party, or if there is any claim or (ii) against a third party available by virtue of the commencement circumstances of any action or proceedingthe Loss, such party (the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"), give such Indemnifying Party written notice of such claim or the commencement of such action or proceeding and shall permit the Indemnifying Party to Indemnitor may assume the defense or the prosecution thereof by prompt written notice to the Indemnitee and the affected Protected Party, including the employment of counsel or accountants, at its cost and expense. The Indemnitee and the affected Protected Party shall have the right to employ counsel separate from counsel employed by the Indemnitor in any such action and to participate therein, but the fees and expenses of such counsel employed by the Indemnitee and the affected Protected Party shall be at their expense. The Indemnitor shall not be liable for any settlement of any such claim or any proceeding or litigation resulting from such claim, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is a conflict of interest between it and the
(b) If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved Party, the obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at effected without its expense, in the defense of such claim or litigation provided that the Indemnifying Party shall direct and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the prior written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party.
(c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the consent of the Indemnifying Partyconsent, which consent shall not be unreasonably withheld; provided that if the Indemnitor does not assume the defense or prosecution of a claim as provided above within thirty (30) days after notice thereof from the Indemnitee or any Protected Party, the Indemnitee and the affected Protected Party may settle such claim without the Indemnitor's consent. If no The Indemnitor shall not agree to a settlement of any claim which provides for any relief other than the claim payment of monetary damages or litigation is made, which could have a material precedential impact or effect on the Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount business or financial condition of any judgment rendered with respect Protected Party without the Indemnitee's and the affected Protected Party's prior written consent. Whether or not the Indemnitor does choose to so defend or prosecute such claim or in such litigation and of claim, all expenses, legal or otherwise, as incurred by the Aggrieved Party parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnitor shall be subrogated to all rights and remedies of any Protected Party, except to the extent they apply against such claim or litigationanother Protected Party.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitations.
Appears in 1 contract
Sources: Asset Purchase Agreement (Transworld Healthcare Inc)
Defense. (a) Promptly after the receipt by In connection with any person entitled claim giving rise to indemnification indemnity ------- under Section 9.2 and 9.3 herein this Agreement resulting from or arising out of notice of (i) any claim or (ii) the commencement of any action or proceedinglegal proceeding by a party who is not a 28 party to this Agreement, such party (the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"), give such Indemnifying Party written notice of such claim or the commencement of such action or proceeding and shall permit the Indemnifying Party to at its sole cost and expense shall assume the defense of any such claim or any legal proceeding or litigation resulting from such claim, unless with legal counsel approved by the action or proceeding seeks an injunction or other similar relief against the Aggrieved Indemnified Party or there is a conflict of interest between it and the
in its reasonable discretion. The Indemnified Party shall be entitled to participate in (bbut not control) If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom action, with its own counsel reasonably acceptable and at its own expense; provided, however, if (i) the named parties to the Aggrieved Party, the obligations of any such proceeding (including any impleaded parties) include both the Indemnifying Party as and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (other than differing interests associated with an Indemnifying Party's obligation to indemnify), or (ii) the employment of counsel by such claim shall be limited Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in assume the defense of such claim or litigation provided that action within a reasonable time; then, the Indemnified Party shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party shall direct and control the defense of such claim or litigationon a current basis. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall notIf after notification thereof, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party.
(c) If the Indemnifying Party shall does not assume the defense of any such claim or litigation resulting therefromfrom a claim within a timely manner so as not to prejudice the rights of the Indemnified Party, the Aggrieved Indemnified Party may defend against such claim or litigation litigation, in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expensesappropriate, legal or otherwiseincluding, as incurred by the Aggrieved Party in connection with the defense against or settlement of but not limited to, settling such claim or litigation. No settlement , after giving notice of claim or litigation shall be made without the consent of same to the Indemnifying Party, which consent shall not be unreasonably withheldon such terms as the Indemnified Party may deem appropriate (within the exercise of reasonable discretion). If no settlement The liability of the claim or litigation is made, the Indemnifying Party shall promptly reimburse be conclusively established by such settlement by the Aggrieved Indemnified Party for to the extent entered into on the basis of its reasonable discretion, the amount of any judgment rendered with respect such liability to such claim or in such litigation include, but not be limited to, both the settlement consideration and of all the reasonable costs and expenses, legal or otherwiseincluding attorneys' fees, as incurred by the Aggrieved Indemnified Party in the defense against effecting such claim or litigationsettlement.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitations.
Appears in 1 contract
Defense. (a) Promptly after the receipt If a claim by any person entitled to indemnification under Section 9.2 and 9.3 herein of notice of (i) any claim or (ii) the commencement of any action or proceeding, such a third party (the a "Aggrieved PartyThird Party Claim") will, if claim with respect thereto is made against any party obligated an SFI Indemnitee arising out of a matter for which the SFI Indemnitee is entitled to provide indemnification be indemnified pursuant to Section 9.2 and 9.3 herein (5 hereof, the "Indemnifying Party"), give such Indemnifying Party written notice of such claim or the commencement of such action or proceeding and shall permit the Indemnifying Party Preferred Shareholders may elect to assume the defense or the prosecution thereof. The Preferred Shareholders shall have 30 days (which shall be shortened to 15 days in the case of any such claim a commenced lawsuit or any proceeding proceeding) after receipt of a Notice of Claim to undertake to conduct and control, through counsel of their own choosing as designated by the Shareholder Representative and at their sole risk and expense, the good faith settlement or litigation resulting from defense of such claim, unless and the action SFI Indemnitee(s) shall cooperate fully with the Preferred Shareholders in connection therewith; provided that the SFI Indemnitee(s) shall be entitled to participate in such settlement or proceeding seeks an injunction defense through counsel chosen by it, provided that the fees and expenses of such counsel shall be borne by the SFI Indemnitee(s); and provided further that the Preferred Shareholders can only assume the defense if (a) the amount of the Third Party Claim does not exceed the amount of the Escrow Funds held hereunder or other similar relief against the Aggrieved Party or there is a conflict of interest between it and the
(b) If the Indemnifying Party assumes Preferred Shareholders provide commercially reasonable evidence that the defense of any such Preferred Shareholders will have sufficient financial resources to defend the claim and satisfy their indemnification obligations. During the interim the SFI Indemnitee shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or litigation resulting therefrom loss with counsel reasonably acceptable respect to the Aggrieved Party, the obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefromalleged Loss. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Party Preferred Shareholders shall direct and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with obtain the written consent of the Aggrieved PartySFI Indemnitee prior to ceasing to defend, settling or enter into any settlementotherwise disposing of such claim if as a result thereof the SFI Indemnitee would become subject to injunctive, except with declaratory or other equitable relief or the written consent business of the Aggrieved Party.
(c) If SFI Indemnitee would be materially adversely affected in any manner. Whether or not the Indemnifying Preferred Shareholders choose so to defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trials as may be reasonably requested in connection therewith. Such cooperation shall include the retention and the provision of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information. The Preferred Shareholders shall not assume the defense be liable for any settlement of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made effected without the consent of the Indemnifying Partytheir prior written consent, which consent shall not be unreasonably withheld. If no However, if the Preferred Shareholders, fail to defend such claim within the time period necessary to preserve the rights and defense of the SFI Indemnitee, the SFI Indemnitee 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 Preferred Shareholders, subject to the right of the Preferred Shareholders to assume the defense of such claim at any time within the 30-day time period after receiving Notice of Claim . If a claim is based on any suit or litigation is madeproceeding by a third party for infringement which gives rise to an IP Claim (defined in Section 5) resulting in SFI's use of the Software (defined in Section 2.14 of the Merger Agreement) being enjoined or otherwise restricted, the Indemnifying Party Preferred Shareholders, if the Preferred Shareholders elect through the Shareholder Representative to assume defense of such proceeding after receiving notice hereunder, shall promptly reimburse be entitled at their sole expense to do any of the Aggrieved Party following: (i) procure for SFI, Clarus CSA, Inc. and their licensees the amount unrestricted right to continue using the Software, (ii) modify the Software so that it becomes noninfringing, (iii) settle the third party's infringement claim in a manner that gives SFI, Clarus CSA, Inc. and their licensees the unrestricted rights to the software being enjoined or otherwise restricted, or (iv) pay the indemnified party's claim as provided in this Agreement, provided that any settlement under this sentence shall require SFI's prior written approval which shall not be unreasonably withheld. SFI shall comply with any settlement or court order made in connection with such proceeding in the foregoing sentence provided that such compliance by SFI shall not limit the Preferred Shareholder's indemnification obligations hereunder. No Preferred Shareholder shall be liable for any settlement of any judgment rendered with respect to such claim effected without its prior written consent, which shall not be unreasonably withheld. Before any claim may be brought against any of the Preferred Shareholders hereunder, or in such litigation and of under the Merger Agreement, all expenses, legal or otherwise, as incurred by the Aggrieved Party in the defense against such claim or litigation.
(d) The rights Escrow Funds shall be used first to indemnification hereunder shall apply to pay any claims made by either party against the other whereby written notice under Article IX of the Merger Agreement or this Agreement, and SFI hereby authorizes the Preferred Shareholders to settle such claims without consent of SFI to the extent the Escrow Funds will fully satisfy such claim. Preferred Shareholders may also settle any claim has been made and delivered within for which they are liable hereunder without consent of SFI so long as the period payment or performance does not either (y) exhaust the Escrow Funds or (y) exceed the maximum liability amounts set forth below. Settlements requiring performance or payment in excess of the applicable statute of limitationsmaximum liability amounts shall require SFI's prior written consent.
Appears in 1 contract
Defense. Subject to the limitations set forth in this Section 10.5(b), in the event of a Third Party Claim, the Indemnifying Party shall have the right (aexercisable by written notice to the Indemnified Party within fifteen (15) Promptly days after the receipt by any person entitled Indemnified Party has delivered a Claim Notice of the Third Party Claim) to indemnification under Section 9.2 conduct and 9.3 herein control, through counsel of notice its choosing that is reasonably acceptable to the Indemnified Party and at the Indemnifying Party’s own cost and expense, the defense, compromise or settlement of the Third Party Claim; provided, that the Indemnifying Party (i) any claim or has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnifying Party shall provide indemnification to the Indemnified Party in respect thereof, and (ii) if requested by the commencement Indemnified Party, has provided evidence reasonably satisfactory to the Indemnified Party of any action or proceeding, such party (the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"), give such Indemnifying Party written notice of such claim or the commencement of such action or proceeding and shall permit the Indemnifying Party ’s financial ability to assume the defense of pay any such claim or any proceeding or litigation Damages resulting from such claim, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Third Party or there is a conflict of interest between it and the
(b) Claim. If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable elects to the Aggrieved Party, the obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Party shall direct conduct and control the defense of such claim or litigationthe Third Party Claim, the Indemnified Party may participate therein through separate counsel chosen by it and at its own cost and expense. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with Notwithstanding the defense. The Indemnifying Party shall notforegoing, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party.
if (cA) If the Indemnifying Party shall not assume have given notice of its election to conduct and control the defense of any the Third Party Claim within such claim or litigation resulting therefrom15-day period, (B) the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse fail to conduct such defense diligently, (C) the Aggrieved Indemnified Party for the amount shall reasonably determine that use of all expenses, legal or otherwise, as incurred counsel selected by the Aggrieved Indemnifying Party to represent the Indemnified Party would present such counsel with an actual or potential conflict of interest, or (D) the Third Party Claim is for injunctive, equitable or other non-monetary relief against the Indemnified Party, then the Indemnified Party shall have the right to control the defense, compromise or settlement of the Third Party Claim with counsel of its choice at the Indemnifying Party’s sole cost and expense. In any event, from and after delivery of a Claim Notice, the Indemnifying Party and the Indemnified Party shall, and shall cause their respective affiliates and representatives to, cooperate fully in connection with the defense against or settlement prosecution of any Third Party Claim, including furnishing such claim or litigation. No settlement of claim or litigation shall records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be made without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld. If no settlement of the claim or litigation is made, reasonably requested by the Indemnifying Party shall promptly reimburse or the Aggrieved Indemnified Party for in connection therewith. In addition, the amount party controlling the defense of any judgment rendered Third Party Claim shall keep the non-controlling party advised of the status thereof and shall consider in good faith any recommendations made by the non-controlling party with respect to such claim or in such litigation and of all expenses, legal or otherwise, as incurred by the Aggrieved Party in the defense against such claim or litigationthereto.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitations.
Appears in 1 contract
Defense. If any action, litigation, suit, investigation, arbitration or other proceeding (a"Proceeding") Promptly after the receipt by any person is brought against an Indemnitee for which such Indemnitee is or may be entitled to indemnification under Section 9.2 and 9.3 herein of notice of (i) any claim or (ii) the commencement of any action or proceeding, such party (the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (Sections 8.1 or 8.2 from an Indemnitor, the "Indemnifying Party"), Indemnitee shall promptly give such Indemnifying Party written notice to the Indemnitor of such claim or Proceeding. The Indemnitor shall, at its own expense, have the commencement opportunity to be represented by counsel of such action or proceeding its choosing and shall permit the Indemnifying Party to assume and conduct the defense of any such claim or any proceeding or litigation resulting from such claim, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is Proceeding upon providing a conflict of interest between it and the
(b) If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable written undertaking to that effect to the Aggrieved PartyIndemnitee. If, after such opportunity, the obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense Indemnitor or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Party shall direct and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party.
(c) If the Indemnifying Party shall counsel does not assume the defense of any such claim or litigation resulting therefromProceeding, it shall be bound by the results obtained by the Indemnitee. In the event that the Indemnitee does not receive written notice from the Indemnitor within fifteen (15) days of having given notice to the Indemnitor of any such Proceeding, the Aggrieved Party may defend against Indemnitor shall be deemed to have elected not to assume the defense of such claim or litigation Proceeding, and in such manner as it may deem appropriate event the Indemnitee will have the right to conduct such defense and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of compromise and settle such claim or litigation. No settlement of claim or litigation shall be made Proceeding without the consent of the Indemnifying PartyIndemnitor. In the event that the Indemnitor does elect to assume the defense of such Proceeding, the Indemnitee will cooperate with and make available to the Indemnitor such assistance and materials as may be reasonably requested by it, and the Indemnitee will have the right at its expense to participate in the defense; provided, however, that neither party will have the right to compromise or settle such Proceeding without the prior written consent of the other party which consent shall not be unreasonably withheld. If no settlement of the claim or litigation is made, the Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of any judgment rendered with respect to such claim or in such litigation and of all expenses, legal or otherwise, as incurred by the Aggrieved Party in the defense against such claim or litigation.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitations.
Appears in 1 contract
Defense. (a) Promptly after If the receipt by facts pertaining to a Loss arise out of the claim of any person entitled to indemnification under Section 9.2 and 9.3 herein of notice of (i) third party, or if there is any claim or against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor may, by giving written notice to the Indemnified Party within twenty (ii20) days following its receipt of the commencement of any action or proceeding, such party (the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"), give such Indemnifying Party written notice of such claim or the commencement of such action or proceeding and shall permit the Indemnifying Party claim, elect to assume the defense or the prosecution of any such claim or any proceeding or litigation resulting from such claim, unless including the employment of counsel or accountants at its cost and expense. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action or proceeding seeks an injunction or other similar relief against and to participate in such action, but the Aggrieved Party or there is a conflict fees and expenses of interest between it and thesuch counsel shall be at the Indemnity Obligor’s own expense.
(b) If Whether or not the Indemnifying Party assumes Indemnity Obligor chooses to defend or prosecute an indemnification claim under Section 9.4(a), all the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable parties to the Aggrieved Party, the obligations of the Indemnifying Party as to such claim this Agreement shall be limited to taking all steps necessary cooperate in the defense or settlement prosecution of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from shall furnish such records, information and against any lossestestimony and shall attend such conferences, damages discovery proceedings and liabilities caused by or arising out of any settlement or any judgment trials as may be reasonably requested in connection with such claim or litigation resulting therefromtherewith. The Aggrieved Party Each party shall act in good faith and in a commercially reasonable manner in addressing any liabilities that may participate, at its expense, in provide the defense of such claim or litigation provided that the Indemnifying Party shall direct and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Partybasis for an indemnifiable claim.
(c) If the Indemnifying No Indemnity Obligor may settle any claim affecting an Indemnified Party shall without such Indemnified Party’s prior written consent, not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. If no settlement of the No Indemnified Party may settle any claim affecting an Indemnity Obligor without such Indemnity Obligor’s prior written consent, not to be unreasonably withheld, conditioned or litigation is made, the Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of any judgment rendered with respect to such claim or in such litigation and of all expenses, legal or otherwise, as incurred by the Aggrieved Party in the defense against such claim or litigationdelayed.
(d) The rights In the event of payment by the Indemnity Obligor to indemnification hereunder the Indemnified Party in connection with any Loss arising out of a third party claim, the Indemnity Obligor shall apply not be subrogated to claims made by either party against and shall not stand in the other whereby written notice place of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have any right or claim has been made and delivered within the period of the applicable statute of limitationsagainst such third party relating to such indemnified matter.
Appears in 1 contract
Defense. In the event any person or entity not a party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, then the party receiving notice of such event shall promptly notify the other party or parties of the demand, claim or lawsuit. Within ten (10) days after notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for the Indemnified Party, to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (a) Promptly after the receipt by named parties to any person entitled to indemnification under Section 9.2 and 9.3 herein of notice of such proceeding (iincluding any impleaded parties) any claim or (ii) the commencement of any action or proceeding, such party (the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"), give such Indemnifying Party written notice of such claim or the commencement of such action or proceeding and shall permit include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, or (b) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (c) the Indemnifying Party has not in fact employed counsel to assume the defense of any such claim or any proceeding or litigation resulting from such claim, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is within a conflict of interest between it and the
(b) If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved Partyreasonable time; then, the obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Indemnified Party shall direct have the right to retain its own counsel at the sole cost and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party.
(c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the consent expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent shall not be unreasonably withheldto entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If no settlement of any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or additional to those available to and which have not been asserted by the claim or litigation is madeIndemnifying Party, the Indemnifying Party shall promptly will not have at the election of the Indemnified Party, the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse the Aggrieved such Indemnified Party and any person controlling such Indemnified Party on a current basis for the amount reasonable fees and expenses of any judgment rendered with respect counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten (10) days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or in such litigation and of all expenses, legal or otherwiselawsuit, as incurred it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Aggrieved Indemnifying Party on a current basis. Except as explicitly provided in this Section 9.3(b), failure to provide Notice shall not limit the defense against rights of such claim or litigationparty to indemnification.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitations.
Appears in 1 contract
Defense. (a) Promptly after the receipt by any person entitled to indemnification under Section 9.2 and 9.3 herein of notice of (i) any If a third‑party action, suit, claim or demand (iia “Third Party Claim”) is involved, then, upon receipt of the commencement of any action or proceedingIndemnification Notice, such party the Indemnitor shall have fifteen (the "Aggrieved Party"15) willcalendar days after said notice is given to elect, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"), give such Indemnifying Party by written notice given to the Indemnitee, to undertake, conduct and control, through counsel of such claim or the commencement of such action or proceeding and shall permit the Indemnifying Party to assume the defense of any such claim or any proceeding or litigation resulting from such claim, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there its own choosing which is a conflict of interest between it and the
(b) If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved PartyIndemnitee and at its sole risk and expense, the obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any good faith settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that claim, and the Indemnifying Party shall direct and control the defense of such claim or litigation. The Aggrieved Party Indemnitee shall cooperate and make available all books and records reasonably necessary and useful with the Indemnitor in connection therewith; provided: (a) all settlements require the prior reasonable consultation with the defense. The Indemnifying Party shall not, in Indemnitee and the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the prior written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party.
(c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the consent of the Indemnifying PartyIndemnitee, which consent shall not be unreasonably withheld, provided that the Indemnitor may settle any such claim without the prior consent of the Indemnitee if such settlement involves the full release of the Indemnitee and the Indemnitor agrees to pay all amounts payable pursuant to such settlement, and (b) the Indemnitee shall be entitled to participate in such settlement or defense through counsel chosen by the Indemnitee (the fees and expenses of such counsel shall be borne by the Indemnitee). So long as the Indemnitor is contesting any such claim in good faith, the Indemnitee shall not pay or settle any such claim; provided, however, that notwithstanding the foregoing, the Indemnitee shall have the right to pay or settle any such claim at any time; provided, that in such event, the Indemnitee shall waive any right of indemnification therefor by the Indemnitor. If no the Indemnitor does not make a timely election to undertake the good faith defense or settlement of the claim as aforesaid, or litigation is madeif the Indemnitor fails to proceed with the good faith defense or settlement of the matter after making such election, then, in either such event, the Indemnifying Indemnitee shall have the right to contest, settle or compromise the claim at its exclusive discretion, retaining its right to seek indemnification from Indemnitor. In addition, if an Indemnitee (a) determines in good faith that a Third Party Claim may materially and adversely affect it or any of its Affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, or (b) in the good faith opinion of counsel of such party concludes that there are defenses available to it that may be unavailable to, or inconsistent with or contrary to the interests of the Indemnitor, the Indemnitee may, by notice to the Indemnitor, retain the exclusive right to defend, compromise or settle such Third Party Claim, retaining its right to seek indemnification from Indemnitor. In any event, the Indemnitor and the Indemnitee shall promptly reimburse fully cooperate with each other in connection with the Aggrieved Party for the amount of any judgment rendered with respect to such claim defense, including by furnishing all available documentary or in such litigation and of all expenses, legal or otherwise, other evidence as incurred is reasonably requested by the Aggrieved Party in the defense against such claim or litigationother party.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitations.
Appears in 1 contract
Sources: Stock Purchase Agreement (IHS Inc.)
Defense. (a) Promptly after In the receipt by event any person entitled to indemnification under Section 9.2 and 9.3 herein of notice of (i) any Third Party makes a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event will promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the “Notice”) to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party will have the option, at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party, which approval will not unreasonably be withheld. The Indemnified Party will have the right, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (A)(i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party and (ii) the commencement employment of any action or proceeding, counsel by such party (Indemnified Party has been authorized in writing by the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"), give such Indemnifying Party written notice of such claim or the commencement of such action or proceeding and shall permit (B) the Indemnifying Party has not in fact employed counsel to assume the defense of any such claim or any proceeding or litigation resulting from such claim, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is within a conflict of interest between it and the
(b) If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved Partyreasonable time; then, the obligations of Indemnified Party will have the Indemnifying Party as right to such claim shall be limited to taking all steps necessary in retain its own counsel at the defense or settlement of such claim or litigation resulting therefrom sole cost and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Party shall direct and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party.
(c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the consent expense of the Indemnifying Party, which costs and expenses will be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent shall to entry of any judgment or enter into any settlement without the consent of the Indemnified Party which consent will not be unreasonably withheld. If no settlement of In the claim or litigation is made, event that the Indemnifying Party shall promptly reimburse will fail to respond within twenty days after receipt of the Aggrieved Notice, the Indemnified Party for may retain counsel and conduct the amount defense of any judgment rendered with respect to such demand, claim or in such litigation and of all expenses, legal or otherwiselawsuit, as incurred it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses will be paid by the Aggrieved Indemnifying Party in on a current basis. Failure to provide Notice will not limit the rights of such party to indemnification, except to the extent the Indemnifying Party’s defense against such claim or litigation.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitationsaction is prejudiced by such failure.
Appears in 1 contract
Defense. (a) Promptly after the receipt If a claim by any person entitled to indemnification under Section 9.2 and 9.3 herein of notice of (i) any claim or (ii) the commencement of any action or proceeding, such a third party (the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated entitled to provide indemnification pursuant to Section 9.2 and 9.3 herein under this Agreement, such Indemnified Party shall promptly (i.e., within five (5) business days of the "Indemnifying Party"), give such Indemnifying Indemnified Party written notice having actual knowledge of such claim or claim) notify the commencement indemnifying party of such action claim. The indemnifying party shall have ten (10) business days after receipt of the above-referenced notice to undertake, through counsel of its choosing (subject to the reasonable consent of the Indemnified Party) and at the expense of the indemnifying party, the settlement or proceeding and shall permit the Indemnifying Party to assume the defense of thereof; provided, however, that any such claim or any proceeding or litigation resulting from such claim, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is a conflict of interest between it and the
(b) If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved Party, the obligations of the Indemnifying Party as to such claim settlement shall be limited subject to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Party shall direct and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party.
(c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the consent of the Indemnifying Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed. If no settlement approval of the claim or litigation monetary terms of any such proposed settlement is madenot given, then the Indemnifying Party Party's maximum monetary obligation for any future settlement or judgment shall promptly reimburse the Aggrieved Party for be the amount of any judgment rendered with respect the settlement that was not so approved. If the indemnifying party does not notify the Indemnified Party within ten (10) business days after receipt of the Indemnified Party's notice of a claim of indemnity hereunder that the indemnifying party elects to undertake the defense thereof, or the indemnifying party ceases to reasonably contest such claim in good faith, the Indemnified Party shall have the right to contest, settle or in compromise the claim at the expense of the indemnifying party and subject to the written consent of the indemnifying party, which shall not be unreasonably withheld, conditioned or delayed. In connection with the defense of any claim, each party will make available to the party controlling such litigation and of all expensesdefense, legal any books, records or otherwise, as incurred by the Aggrieved Party other documents within its control that are reasonably requested in the defense against course of such claim or litigation.
(d) The rights defense. Nothing contained in this Section 9.3.2 shall be construed as a limitation on the right of any party to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitationsunder this Agreement.
Appears in 1 contract
Defense. In the event any person or entity not a party to this Agreement shall make a demand or claim, file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential loss, damage or expense comes to the attention of any party in respect of matters embraced by the indemnity under this Agreement, then the party receiving notice or aware of such event shall promptly notify the other party or parties of the demand, claim or lawsuit. Within ten days after notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for the Indemnified Party, to defend any such demand, claim or lawsuit, provided that counsel who shall conduct the defense of such demand, claim or lawsuit shall be approved by the Indemnified Party whose approval shall not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (a) Promptly after the receipt by named parties to any person entitled to indemnification under Section 9.2 and 9.3 herein of notice of such proceeding (iincluding any impleaded parties) any claim or (ii) the commencement of any action or proceeding, such party (the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"), give such Indemnifying Party written notice of such claim or the commencement of such action or proceeding and shall permit include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (other than differing interests associated with an Indemnifying Party's obligation to indemnify), or (b) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (c) the Indemnifying Party has not in fact employed counsel to assume the defense of any such claim or any proceeding or litigation resulting from such claim, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is within a conflict of interest between it and the
(b) If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved Partyreasonable time; then, the obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Indemnified Party shall direct have the right to retain its own counsel at the sole cost and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party.
(c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the consent expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, shall consent shall not be unreasonably withheld. If no to entry of any judgment or enter into any settlement without the consent of the claim or litigation Indemnified Party; provided, however, that if a firm written offer is mademade by the third party to settle any claim, which involves only the payment of cash (United States dollars) and the claimant provides to the Indemnified Party a general release in a form reasonably acceptable to the Indemnified Party from all liability, and the Indemnifying Party proposes to accept (and pay in full the amount of ) such settlement but the Indemnified Party refuses to consent to such settlement, then: (i) the Indemnifying Party shall promptly reimburse be excused from, and the Aggrieved Indemnified Party for shall be solely responsible for, all further defense costs related to such third-party claim; (ii) the maximum reimbursement amount relating to such third-party claim shall be the amount of the proposed settlement (plus any judgment rendered with respect defense costs not paid by the Indemnifying Party prior to the rejection of the settlement) if the amount thereafter recovered from the Indemnified Party on such claim or in such litigation and of all expenses, legal or otherwise, as incurred by is greater that the Aggrieved Party in the defense against such claim or litigation.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice amount of the claim has been made and delivered within the period of the applicable statute of limitations.proposed settlement; and;
Appears in 1 contract
Defense. In case any claim, demand or deficiency (aa "CLAIM") Promptly is asserted or any action is commenced or notice is given of any administrative or other proceeding against the person(s) and/or entities seeking indemnity under this SECTION 11 (hereinafter referred to as the "INDEMNITEE") in respect of which such indemnity is sought hereunder (each and all of such persons and entities being hereinafter referred to as the "INDEMNITOR") pursuant to this SECTION 11, Indemnitee shall give prompt notice thereof in writing to Indemnitor. Within thirty (30) days after the receipt by of such notice (or prior to such earlier date as any person entitled to indemnification under Section 9.2 and 9.3 herein of answer in any administrative or other proceeding is due), Indemnitor may give Indemnitee written notice of its election to conduct the defense of such Claim at its own expense. If Indemnitor has given Indemnitee such notice of election to conduct the defense, Indemnitee shall nevertheless have the right to participate in the defense thereof, but such participation shall be solely at its expense. If Indemnitor shall not notify Indemnitee in writing (iwithin the time hereinabove provided) any claim or of its election to conduct the defense of such Claim, Indemnitee may (iibut need not) conduct (at the expense of Indemnitor) the commencement defense of any action Claim. The party assuming the defense of a Claim hereunder (the "DEFENDING PARTY") shall notify the other party of its intention to settle, compromise or proceedingsatisfy any such Claim and may make such settlement, compromise or satisfaction unless such other party (the "Aggrieved PartyASSUMING PARTY") will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein shall notify the Defending Party in writing (the "Indemnifying Party"), give within thirty (30) days after receipt of such Indemnifying Party written notice of such claim intention to settle, compromise or the commencement satisfy) of such action or proceeding and shall permit the Indemnifying Party its election to assume (at its sole expense) the defense of any such claim or Claim and promptly thereafter take appropriate action to implement such defense. The Assuming Party shall indemnify the Defending Party and hold it harmless against any proceeding or litigation resulting from such claim, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is a conflict of interest between it and the
(b) If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved Party, the obligations losses in excess of the Indemnifying amount of losses the Defending Party as to would have incurred if the proposed settlement had been agreed upon. Indemnitee shall cooperate with Indemnitor in such claim defense, at Indemnitor's cost, and Indemnitee shall be limited to taking all steps necessary in the defense or settlement provide reasonable assistance of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment Indemnitee's employees in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Party shall direct and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party.
(c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld. If no settlement of the claim or litigation is made, the Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of any judgment rendered with respect to such claim or in such litigation and of all expenses, legal or otherwise, as incurred by the Aggrieved Party in the defense against such claim or litigation.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitations.
Appears in 1 contract
Sources: Manufacturing Agreement (Gumtech International Inc \Ut\)
Defense. (a) Promptly after If any such action is brought against an indemnified party, the receipt by any person indemnifying Party will be entitled to indemnification under Section 9.2 participate in and 9.3 herein to assume the defense thereof to the extent that it may wish, with counsel reasonably satisfactory to such indemnified party, by giving written notice to the indemnified party within thirty (30) days of notice its receipt of (i) any claim or (ii) the commencement of any action or proceeding, such party (the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"), give such Indemnifying Party written notice of such claim action from the indemnified party, and after such notice from the indemnifying Party to such indemnified party of the indemnifying Party’s election to assume the defense thereof, the indemnifying Party shall not be liable to such indemnified party for any legal or other expenses subsequently incurred by the commencement of such action or proceeding and shall permit latter in connection with the Indemnifying defense thereof unless the indemnifying Party has failed PURCHASE AND SALE AGREEMENT -49- to assume the defense of any such claim and to employ counsel reasonably satisfactory to such indemnified party. Notwithstanding any of the foregoing to the contrary, the indemnified party will be entitled to select its own counsel and assume the defense of any action brought against it if (i) the indemnified party has been advised by counsel that an actual conflict of interest exists between the indemnifying Party and the indemnified party in connection with the defense of such action or any proceeding or litigation resulting from proceeding, (ii) such claim, unless the action or proceeding seeks an injunction or other similar injunctive relief against with respect to the Aggrieved Party or there is a conflict of interest between it and the
(b) If the Indemnifying Party assumes the defense of any such indemnified claim or litigation resulting therefrom with is part of a criminal proceeding or (iii) the indemnifying Party fails to select counsel reasonably acceptable satisfactory to the Aggrieved indemnified party, in each case, with the expenses of such defense to be paid by the indemnifying Party. As a condition to the indemnifying Party’s obligations hereunder, the obligations of indemnified party will in good faith cooperate with and assist the Indemnifying indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense prosecution or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such indemnified claim or litigation provided that at no unreasonable out of pocket expense to the Indemnifying indemnified party. No indemnifying Party shall direct and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Party, judgment or enter into any settlement, except settlement with the written consent of the Aggrieved Party.
respect to a claim either (ca) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the consent of the Indemnifying indemnified party, which consent shall not be unreasonably withheld, or (b) unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability with respect to such claim. No indemnified party shall consent to entry of any judgment or enter into any settlement of any such action, the defense of which has been assumed by an indemnifying Party, without the consent of such indemnifying Party, which consent shall not be unreasonably withheld. If no settlement of the claim or litigation is made, the Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of any judgment rendered with respect to such claim or in such litigation and of all expenses, legal or otherwise, as incurred by the Aggrieved Party in the defense against such claim or litigation.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitations.
Appears in 1 contract
Defense. (a) Promptly after With respect to any Proceeding as to which Indemnitee notifies the receipt Company of the commencement thereof, the Company or any Subsidiary designated by any person the Company and that has legal standing to participate in such Proceeding will be entitled to indemnification under Section 9.2 participate in the Proceeding at its own expense and 9.3 herein except as otherwise provided below, to the extent the Company or such Subsidiary so wishes, it may assume the defense thereof with counsel reasonably satisfactory to Indemnitee. After notice from the Company or such Subsidiary to Indemnitee of notice of (i) any claim or (ii) the commencement of any action or proceeding, such party (the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"), give such Indemnifying Party written notice of such claim or the commencement of such action or proceeding and shall permit the Indemnifying Party its election to assume the defense of any Proceeding, the Company will not be liable to Indemnitee under this Agreement or otherwise for any Expenses subsequently incurred by Indemnitee in connection with the defense of such claim Proceeding other than reasonable costs of investigation or any proceeding as otherwise provided below. Indemnitee shall have the right to employ his own counsel in such Proceeding, but all Expenses related thereto incurred after notice from the Company or litigation resulting from such claimSubsidiary of its assumption of the defense shall be at Indemnitee's expense unless: (i) the employment of counsel by Indemnitee has been authorized by the Company or such Subsidiary, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or (ii) Indemnitee has reasonably determined that there is may be a conflict of interest between it Indemnitee and the
(b) If the Indemnifying Party assumes the defense of any Company or such claim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved Party, the obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, Subsidiary in the defense of the Proceeding, (iii) after a Change in Control of the Company or a Change in Control of a Subsidiary, or (iv) neither the Company nor such claim Subsidiary shall within sixty (60) calendar days (or litigation provided that the Indemnifying Party shall direct and control such shorter period of time as may be necessary to preserve any rights or defenses) in fact have employed counsel to assume the defense of such claim Proceeding, in each of which cases in clauses (i) through (iv) all Expenses of the Proceeding shall be borne by the Company; and (v) if the Company or litigation. The Aggrieved Party shall cooperate such Subsidiary has employed counsel to represent Indemnitee and make available all books other current and records reasonably necessary former directors, officers and useful in connection with employees of the defense. The Indemnifying Party shall not, Company or such Subsidiary in the defense of a Proceeding, and a majority of such claim persons, including Indemnitee, reasonably object to such counsel selected by the Company or any litigation resulting therefromsuch Subsidiary pursuant to this Section 6(a), consent then such persons, including Indemnitee, shall be permitted to entry employ one (1) additional counsel of any judgment, except with their choice and the written consent reasonable fees and expenses of such counsel shall be at the expense of the Aggrieved PartyCompany; provided, however, that such counsel shall be chosen from amongst the list of counsel, if applicable, approved by any company with which the Company or enter into any settlementsuch Subsidiary obtains or maintains directors' and officers' liability insurance, except if required by the terms of such insurance. In the event separate counsel is retained by an Indemnitee pursuant to this Section 6(a), the Company shall and shall cause such Subsidiary, if applicable, to cooperate fully with Indemnitee with respect to the written consent defense of the Aggrieved Party.
(c) If Proceeding, including making documents, witnesses and other reasonable information related to the Indemnifying Party defense available to Indemnitee and such separate counsel pursuant to joint-defense agreements or confidentiality agreements, as appropriate. Neither the Company nor such Subsidiary shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Company or such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwiseSubsidiary, as incurred by to which Indemnitee shall have made the Aggrieved Party determination provided for in connection with clause (ii) above or as to which the Indemnitee elects to assume the defense against or settlement after the occurrence of such claim or litigation. No settlement of claim or litigation shall be made without the consent either of the Indemnifying Party, which consent shall not be unreasonably withheld. If no settlement of the claim or litigation is made, the Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of any judgment rendered with respect to such claim or events described in such litigation and of all expenses, legal or otherwise, as incurred by the Aggrieved Party in the defense against such claim or litigationclause (iii) above.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitations.
Appears in 1 contract
Sources: Indemnification Agreement (First Midwest Bancorp Inc)
Defense. (a) Promptly after the receipt by any person entitled to indemnification under Section 9.2 and 9.3 herein an Indemnified Party of notice of (i) any a possible action, suit, proceeding or claim or (ii) the commencement of any action or proceedingreferred to in Section 7.01 hereof, such party (the "Aggrieved Indemnified Party") will, if a claim with in respect thereto thereof is to be made against any party obligated the Indemnifying Party under such Section, shall provide the Indemnifying Party with written particulars thereof; provided that failure to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"), give Party with such particulars shall not relieve such Indemnifying Party written notice from any liability which it might have on account of the indemnity provided for in this Article Seven except insofar as such claim or the commencement of failure shall prejudice such action or proceeding and Indemnifying Party. The Indemnified Party shall permit also provide to the Indemnifying Party to assume the defense copies of any such claim or any proceeding or litigation resulting from such claimall relevant documentation and, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is a conflict of interest between it and the
(b) If the Indemnifying Party assumes the defense defence thereof, shall keep such Indemnifying Party advised of the progress thereof and will discuss with the Indemnifying Party all significant actions proposed. An Indemnifying Party shall be entitled, at its own expense, to participate in (and, to the extent that it may wish, to assume) the defence of any such action, suit, proceeding or claim or litigation resulting therefrom with but such defence shall be conducted by counsel reasonably acceptable to of good standing approved by the Aggrieved Indemnified Party, the obligations of such approval not to be unreasonably withheld. Upon the Indemnifying Party as notifying the Indemnified Party of its election so to assume the defence and retaining such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any lossescounsel, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Party shall direct and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party.
(c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory be liable to the Aggrieved Indemnified Party for any legal or other expenses subsequently incurred by it in connection with such defence other than for reasonable costs of investigation. If such defence is assumed by the Indemnifying Party, it shall, through the course thereof, provide copies of all relevant documentation to the Indemnified Party, keep such Indemnified Party advised of the progress thereof and shall discuss with the Indemnified Party all significant actions proposed. The No Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or enter into any settlement of such claim or litigation. No settlement of claim or litigation shall be made without the consent of the Indemnifying Indemnified Party, which but such consent shall not be unreasonably withheld. If no settlement of such defence is not assumed by the claim or litigation is madeIndemnifying Party, the Indemnifying Party shall promptly reimburse not be liable for any settlement made without its consent, but such consent shall not be unreasonably withheld. Notwithstanding the Aggrieved foregoing, an Indemnified Party for shall have the amount right, at the Indemnifying Party's expense, to employ counsel of its own choice in respect of the defence of any judgment rendered such action, suit, proceeding or claim if (a) the employment of such counsel has been authorized by the Indemnifying Party in connection with respect such defence; or (b) counsel retained by the Indemnifying Party or the Indemnified Party shall have advised the Indemnified Party that there may be legal defences available to such claim it which are different from or in addition to those available to the Indemnifying Party (in which event and to that extent, the Indemnifying Party shall not have the right to assume or direct the defence on behalf of the Indemnified Party) or that there may be a conflict of interest between the Indemnifying Party and the Indemnified Party; or (c) the Indemnifying Party shall not have assumed such litigation defence and of all expenses, legal or otherwise, as incurred by the Aggrieved Party in the defense against such claim or litigation.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written employed counsel therefor within a reasonable time after receiving notice of the claim has been made and delivered within the period of the applicable statute of limitationssuch action, suit, proceeding or claim.
Appears in 1 contract
Defense. (aThe Parties, working through the JSC, shall cooperate to defend any such claims under the strategy, terms and conditions as may be authorized by the JSC. The JSC shall designate one Party as the leading Party for such defense. The Parties shall make decisions with regard to such actions covered by this Section 9.6 jointly through the JSC in accordance with the provisions of Sections 2.5(b) Promptly after the receipt by any person entitled to indemnification under Section 9.2 and 9.3 herein of notice of (i) any claim or (ii) the commencement of any action or proceeding, such party (the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"2.5(c), give such Indemnifying Party written notice of such claim or the commencement of such action or proceeding and provided that any unresolved disputes shall permit the Indemnifying Party not be subject to assume the defense of any such claim or any proceeding or litigation resulting from such claim, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is a conflict of interest between it and the
(b) If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved Party, the obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expenseexpedited arbitration and, in the defense case of any unresolved dispute, each Party named as a defendant in such action shall be entitled upon written notice to defend itself in such matter independently by counsel of its own choice and at its own expense; provided, that each Party shall inform the other Party of the progress of such claim or litigation provided that defense [ * ] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Indemnifying Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended. and, if reasonably requested by the other Party, shall reasonably cooperate with the other Party. For so long as the Parties continue to pursue such matter jointly through the JSC, all costs and expenses of any defense actions under this Section 9.6(b) shall be [ * ]. In any action pursued jointly by the Parties through the JSC, the non-leading Party shall direct reasonably cooperate with the leading Party, including if required to conduct such defense, furnishing a power of attorney. The non-leading Party shall have the right to confer, through the JSC, with the leading Party in any such defense and control the defense leading Party shall consider in good faith such input from the non-leading Party. If either Party desires to be released from the cost-sharing obligation described above, then such Party (a “Removed Party”) shall be entitled, upon thirty (30) days prior written notice to the JSC, to be released from sharing such costs and the matter shall thereafter be handled and pursued at the discretion of the continuing Party (a “Continuing Party”). Following the end of such claim or litigationthirty (30) day notice period, the Continuing Party shall bear all costs and expenses for the continuation of the matter. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party.
(c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Removed Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with and reasonably cooperate to support the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the consent efforts of the Indemnifying Continuing Party, which consent shall not be unreasonably withheld. If no settlement of the claim or litigation is madeIn any event, the Indemnifying Removed Party shall promptly reimburse the Aggrieved Party for the amount of any judgment rendered with respect to such claim or in such litigation and of all expenses, legal or otherwise, as incurred by the Aggrieved Party in the defense against such claim or litigation.
(d) The forego its rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim separate representation in any matter from which it has been made and delivered within the period of the applicable statute of limitationswithdrawn.
Appears in 1 contract
Defense. (a) Promptly after Subject to the receipt by any person entitled to indemnification under limitations set forth in this Section 9.2 and 9.3 herein of notice of (i) any claim or (ii) the commencement of any action or proceeding, such party (the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"10.5(b), give such Indemnifying in the event of a Third Party written notice of such claim or the commencement of such action or proceeding and shall permit Claim, the Indemnifying Party shall have the right (exercisable by written notice to assume the defense Indemnified Party within ten (10) days after the Indemnified Party has given a Claim Notice of any such claim or any proceeding or litigation resulting from such claimthe Third Party Claim) to elect to conduct and control, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there through counsel of its choosing that is a conflict of interest between it and the
(b) If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved Indemnified Party and at the Indemnifying Party’s sole cost and expense, the obligations defense, compromise or settlement of the Third Party Claim if the Indemnifying Party as to such claim shall be limited to taking all steps necessary (i) has acknowledged and agreed in writing that, if the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any lossessame is adversely determined, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Party shall direct provide indemnification to the Indemnified Party in respect thereof, and (ii) if requested by the Indemnified Party, has provided evidence reasonably satisfactory to the Indemnified Party of the Indemnifying Party’s financial ability to pay any Damages resulting from the Third Party Claim; provided, however, that the Indemnified Party may participate therein through separate counsel chosen by it and at its sole cost and expense. Notwithstanding the foregoing, if (A) the Indemnifying Party shall not have given notice of its election to conduct and control the defense of the Third Party Claim within such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not15 day period, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party.
(cB) If the Indemnifying Party shall not assume fail to conduct such defense diligently and in good faith, (C) the defense Indemnified Party shall reasonably determine that use of counsel selected by the Indemnifying Party to represent the Indemnified Party would present such counsel with an actual or potential conflict of interest, or (D) the Third Party Claim is for injunctive, equitable or other non-monetary relief against the Indemnified Party, then in each such case the Indemnified Party shall have the right to control the defense, compromise or settlement of the Third Party Claim with counsel of its choice at the Indemnifying Party’s sole cost and expense. In connection with any such claim or litigation resulting therefromThird Party Claim, from and after delivery of a Claim Notice, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party and the Indemnified Party shall, and shall promptly reimburse the Aggrieved Party for the amount of all expensescause their respective Affiliates and representatives to, legal or otherwise, as incurred by the Aggrieved Party cooperate fully in connection with the defense against or settlement prosecution of such claim or litigation. No settlement of claim or litigation shall Third Party Claim, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be made without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld. If no settlement of the claim or litigation is made, reasonably requested by the Indemnifying Party shall promptly reimburse or the Aggrieved Indemnified Party for in connection therewith. In addition, the amount party controlling the defense of any judgment rendered Third Party Claim shall keep the non-controlling party advised of the status thereof and shall consider in good faith any recommendations made by the non-controlling party with respect to such claim or in such litigation and of all expenses, legal or otherwise, as incurred by the Aggrieved Party in the defense against such claim or litigationthereto.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitations.
Appears in 1 contract
Defense. (a) Promptly after the receipt If any claim, demand or liability is asserted by any person entitled to indemnification under Section 9.2 third party against any Indemnified Party, the Indemnifying Party shall have the right and 9.3 herein shall upon the written request of notice of (i) the Indemnified Party, defend any claim or (ii) Actions brought against the commencement Indemnified Party in respect of any Indemnifiable Claims with counsel of its choice reasonably acceptable to the Indemnified Party and, in the case of a Tax-related Action, tax advisors of its choice reasonably acceptable to the Indemnified Party. In any such action or proceeding, the Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such party counsel shall be at its own expense unless (a) the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"), give such Indemnifying Party written notice and the Indemnified Party mutually agree in writing to the retention of such claim counsel, or (b) the commencement of named parties to any such suit, action or proceeding and shall permit (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, and in the reasonable judgment of the Indemnified Party, representation of the Indemnifying Party and the Indemnified Party by the same counsel would be inadvisable due to assume potential conflicts of interests between them. The Parties shall cooperate and may participate in the defense of any such claim or any proceeding or litigation resulting from such claim, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is a conflict of interest between it and the
(b) all third-party claims which may give rise to Indemnifiable Claims hereunder. If the Indemnifying Party assumes the defense (i) it shall be conclusively established for purposes of any such claim or litigation resulting therefrom with counsel reasonably acceptable this Agreement that the claims made in the Action are within the scope of and subject to the Aggrieved Party, the obligations of indemnification but only if the Indemnifying Party as to such claim shall be limited to taking all steps necessary in assumed the defense pursuant to clause (a) above and not clause (b); and (ii) no compromise or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused claims may be effected by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Party shall direct and control without the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the Indemnified Party's written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party.
(c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld) unless there is no finding or admission of any violation of legal requirement or any violation of the rights of any Person and no effect on any other claims that may be made against the Indemnified Party, or the exclusive relief provided is monetary damages that are paid in full by the Indemnifying Party. If no settlement written notice is given to an Indemnifying Party of the claim or litigation commencement of any Action and the Indemnifying Party does not, within twenty (20) days after the Indemnified Party's written notice is madegiven, give written notice to the Indemnified Party of its election to assume the defense of such Action, the Indemnifying Party shall promptly reimburse be bound by any determination made in such Action or any compromise or settlement effected by the Aggrieved Party for Indemnified Party. In connection with the amount defense of any judgment rendered with respect claim, each Party shall make available to the Party controlling such claim defense, any books, records or in such litigation and of all expenses, legal or otherwise, as incurred by the Aggrieved Party other documents within its control that are reasonably requested in the defense against course of or necessary or appropriate for such claim or litigationdefense.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitations.
Appears in 1 contract
Sources: Securities Purchase Agreement (Hovnanian Enterprises Inc)
Defense. If the facts pertaining to an indemnification loss arise out of the claim of a third party (a) Promptly after other than Parent and its Affiliates, on the receipt by any person one hand and Shareholder and his Affiliates, on the other, whichever is entitled to indemnification under Section 9.2 for such matter) and 9.3 herein indemnification is available by virtue of notice the circumstances of (i) any claim or (ii) the commencement of any action or proceedingindemnification loss, such party (the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"), give such Indemnifying Party written notice of such claim or the commencement of such action or proceeding and shall permit the Indemnifying Party has the right, to be exercised by delivering written notice to the Indemnified Party within thirty (30) days of receipt of a Required Notice, to assume and control the defense or the prosecution thereof, including the employment of counsel or accountants, at its own expense. The assumption of the defense of any an indemnification claim by the Indemnifying Party shall not be construed as an acknowledgement that the Indemnifying Party is liable to indemnify the Indemnified Party in respect of such claim or any proceeding or litigation resulting from such indemnification claim, unless nor shall it constitute a waiver by the action or proceeding seeks an injunction or other similar relief Indemnifying Party of any defenses it may assert against the Aggrieved Party or there is a conflict of interest between it and the
(b) Indemnified Party’s claim for indemnification If the Indemnifying Party assumes the defense of any such third party claim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved Partylitigation, the obligations of the Indemnifying Party as to such claim under this Agreement shall be limited to include taking all steps necessary in the investigation, defense or settlement of such claim or litigation resulting therefrom (including the retention of legal counsel) and to holding the Aggrieved Indemnified Party harmless from and against any losses, damages and liabilities all losses caused by or arising out of any settlement approved by the Indemnified Party or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Party shall direct and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefromlitigation, consent to entry of any judgment, judgment (except with the written consent of the Aggrieved Indemnified Party), or enter into any settlement, settlement (except with the written consent of the Aggrieved Indemnified Party.
): (ca) If that does not include as an unconditional term thereof the Indemnifying giving by the claimant or the plaintiff to the Indemnified Party shall not assume the defense a complete release from, all liability in respect of any such claim or litigation resulting therefromlitigation; or (b) the effect of which is to permit any injunction, the Aggrieved Party may defend declaratory judgment, other order or other equitable relief to be entered, directly or indirectly, against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved any Indemnified Party. The Indemnifying Party shall promptly reimburse permit the Aggrieved Indemnified Party for the amount of all expenses, legal to participate in such defense or otherwise, as incurred settlement through counsel chosen by the Aggrieved Party in connection Indemnified Party, with the defense against or settlement fees and expenses of such claim counsel borne by the Indemnified Party. Whether or litigation. No settlement of claim or litigation shall be made without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld. If no settlement of the claim or litigation is made, the Indemnifying Party chooses to so defend or prosecute any such indemnification claim, all the parties hereto shall promptly reimburse the Aggrieved Party for the amount of any judgment rendered with respect to such claim or cooperate in such litigation good faith and of all expenses, legal or otherwise, as incurred by the Aggrieved Party in a reasonable manner in the defense against or prosecution thereof and shall furnish such claim or litigationrecords, materials, information, witnesses and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitations.
Appears in 1 contract
Defense. If any action, litigation, suit, investigation, arbitration or other proceeding (a"Proceeding") Promptly after the receipt by any person is brought against an Indemnitee for which such Indemnitee is or may be entitled to indemnification under Section 9.2 and 9.3 herein of notice of (i) any claim or (ii) the commencement of any action or proceeding, such party (the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (subparagraph 13(a) or 13(b) from an Indemnitor, the "Indemnifying Party"), Indemnitee shall promptly give such Indemnifying Party written notice a Notice to the Indemnitor of such claim or Proceeding. The Indemnitor shall, at its own expense, have the commencement opportunity to be represented by counsel of such action or proceeding its choosing and shall permit the Indemnifying Party to assume and conduct the defense of any such claim or any proceeding or litigation resulting from such claim, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is Proceeding upon providing a conflict of interest between it and the
(b) If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable written undertaking to that effect to the Aggrieved PartyIndemnitee. If, after such opportunity, the obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense Indemnitor or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Party shall direct and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party.
(c) If the Indemnifying Party shall counsel does not assume the defense of any such claim or litigation resulting therefromProceeding, it shall be bound by the results obtained by the Indemnitee. In the event that the Indemnitee does not receive written notice from the Indemnitor within ten (10) days of having given Notice to the Indemnitor of any such Proceeding, the Aggrieved Party may defend against Indemnitor shall be deemed to have elected not to assume the defense of such claim or litigation Proceeding, and in such manner as it may deem appropriate event the Indemnitee will have the right to conduct such defense. In the event that the Indemnitor does elect to assume the defense of such Proceeding, the Indemnitee will cooperate with and reasonably satisfactory make available to the Aggrieved Party. The Indemnifying Party shall promptly reimburse Indemnitor such assistance and materials as may be reasonably requested by it at no cost to the Aggrieved Party for Indemnitor, and the amount of all expensesIndemnitee will have the right at its expense to participate in the defense; provided, legal however, that the Indemnitee will have the right to compromise or otherwise, as incurred by the Aggrieved Party in connection settle such Proceeding only with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the prior written consent of the Indemnifying Party, Indemnitor which consent shall not be unreasonably withheld. If no settlement of the claim or litigation is made, the Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of any judgment rendered with respect to such claim or in such litigation and of all expenses, legal or otherwise, as incurred by the Aggrieved Party in the defense against such claim or litigation.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitations.
Appears in 1 contract
Defense. If the manufacture, sale or use of Licensed Products under this Agreement by THERAGENEX, its Affiliates, Sublicensees, manufacturers, distributors or customers results in any claim, suit or proceeding for patent infringement solely against THEREGENEX and/or its Affiliates, THERAGENEX shall promptly notify ADVENTRX thereof in writing, setting forth the facts of such claim in reasonable detail. As between the parties to this Agreement, THERAGENEX shall have the first and primary right and responsibility, at its own expense and after consultation with ADVENTRX, to defend and control the defense of any such claim, suit or proceeding by counsel of its own choice, which counsel shall be reasonably acceptable to ADVENTRX. If ADVENTRX, and not THERAGENEX, or ADVENTRX in addition to THERAGENIX, is named as a party to such claim, suit or proceeding, ADVENTRX shall tender its defense to THERAGENEX in writing, and THERAGENEX shall defend ADVENTRX in such claim, suit or proceeding, at THERAGENEX’s own expense and through counsel of its own choice, which counsel shall be reasonably acceptable to ADVENTRX; provided, however, that ADVENTRX may, at its election and expense, actively participate in the planning and conduct of such claim, suit or proceeding and THERAGENEX shall not, without the express prior written consent of ADVENTRX (a) Promptly after make any substantive decision regarding strategy related to such claim, suit or proceeding or (b) settle such claim, suit or proceeding. In connection with such claim, suit or proceeding, in no event shall either Party enter into any agreement with any Third Party, with respect to the receipt ADVENTRX Patent Rights, that (x) contemplates payment or other action by the other Party (y) has a material adverse effect on the other Party’s business or (z) makes any person entitled to indemnification under Section 9.2 and 9.3 herein of notice of admission regarding (i) any claim wrongdoing on the part of the other Party, or (ii) the commencement invalidity, unenforceability or absence of infringement of ADVENTRX Patent Rights, in each case without the prior written consent of the other Party. The Parties shall cooperate with each other in connection with any action or proceedingsuch claim, such party (the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"), give such Indemnifying Party written notice of such claim or the commencement of such action suit or proceeding and shall permit the Indemnifying Party to assume the defense keep each other reasonably informed of all material developments in connection with any such claim or any proceeding or litigation resulting from such claim, unless the action suit or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is (including furnishing a conflict copy of interest between it and the
(b) If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved Party, the obligations of the Indemnifying Party as each communication relating to such claim claim, suit or proceeding). It is understood that the terms of this Section 6.3 shall be limited in no way limit ADVENTRX’s right to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment receive indemnification under Article 10 below in connection with such claim or litigation resulting therefrom. The Aggrieved any Third-Party may participate, at its expense, Claims described in the defense of such claim or litigation provided that the Indemnifying Party shall direct and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved PartySection 10.1(b).
(c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld. If no settlement of the claim or litigation is made, the Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of any judgment rendered with respect to such claim or in such litigation and of all expenses, legal or otherwise, as incurred by the Aggrieved Party in the defense against such claim or litigation.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitations.
Appears in 1 contract
Defense. (a) Promptly after the receipt by any person entitled to indemnification under Section 9.2 and 9.3 herein an Indemnified Person of notice of (i) any claim or (ii) demand or the commencement of any suit, action or proceedingproceeding by any third party with respect to which indemnification may be sought hereunder, such party (Indemnified Person shall notify in writing the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"), give such Indemnifying Party written notice Indemnitor of such claim or demand or the commencement of such suit, action or proceeding proceeding, but failure so to notify the Indemnitor shall not relieve the Indemnitor from any liability which the Indemnitor may have hereunder or otherwise, unless the Indemnitor shall be actually prejudiced by such failure. If the Indemnitor shall so elect, the Indemnitor shall assume the defense of such claim, demand, action, suit or proceeding, including the employment of counsel reasonably satisfactory to such Indemnified Person, and shall permit pay the Indemnifying Party fees and disbursements of such counsel. In the event, however, that such Indemnified Person shall reasonably determine that having common counsel would present such counsel with a conflict of interest or alternative defenses shall be available to an Indemnified Person or if the Indemnitor shall fail to assume the defense of the claim, demand, action, suit or proceeding in a timely manner, then such Indemnified Person may employ separate counsel to represent or defend such Person against any such claim or any proceeding or litigation resulting from such claim, unless the action demand, action, suit or proceeding seeks an injunction and the Indemnitor shall pay the reasonable fees and disbursements of such counsel; provided, however, that the Indemnitor shall not be required to pay the fees and disbursements of more than one separate counsel for all Indemnified Persons in any jurisdiction in any single action, suit or other similar relief against the Aggrieved Party proceeding. For any claim, demand, action, suit or there is a conflict of interest between it and the
(b) If the Indemnifying Party assumes proceeding the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable to which the Aggrieved PartyIndemnitor shall assume, the obligations of Indemnified Person shall have the Indemnifying Party right to participate therein and to retain its own counsel at such Indemnified Person's own expense (except as to otherwise specifically provided in this Section 12.4), so long as such claim shall be limited to taking all steps necessary in participation does not interfere with the defense or settlement Indemnitor's control of such claim claim, demand, action, suit or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefromproceeding. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Party shall direct and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party Indemnitor shall not, in without the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the prior written consent of the Aggrieved PartyIndemnified Person, settle or enter into any settlement, except with the written compromise or consent of the Aggrieved Party.
(c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld. If no settlement of the claim or litigation is made, the Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount entry of any judgment rendered with in any pending or threatened claim, action, suit or proceeding in respect to of which indemnification may be sought hereunder unless such claim settlement, compromise or consent shall include an unconditional release of such Indemnified Person from all liability arising out of such claim, demand, action, suit or proceeding and would not prohibit, restrict or impair the Indemnified Person from engaging in such litigation and of all expenses, legal or otherwise, as incurred by the Aggrieved Party in the defense against such claim or litigationany business.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitations.
Appears in 1 contract
Sources: Stock Purchase Agreement (Pharmaceutical Resources Inc)
Defense. (a) Promptly after 6.2.1. In the receipt event any Claim relating to Covered Events is by or in the right of the Corporation or any person entitled to indemnification Subsidiary, Indemnitee may, at the option of Indemnitee, either control the defense thereof or accept the defense provided under Section 9.2 and 9.3 herein of notice of (i) any claim or (ii) the commencement of any action or proceedingD & O Insurance; provided, however, that Indemnitee may not control the defense if such party (decision would affect the "Aggrieved Party") willcoverage provided by the D & O Insurance, if claim with respect thereto is made against any, to Indemnitee, the Corporation, any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"), give such Indemnifying Party written notice of such claim Subsidiary or the commencement of such action or proceeding other Directors and Officers covered thereby. The Corporation shall permit the Indemnifying Party not be entitled to assume the defense of any such claim Claim relating to Covered Events brought by or in the right of the Corporation or any proceeding Subsidiary.
6.2.2. In the event any Claim relating to Covered Events is other than by or litigation resulting in the right of the Corporation or any Subsidiary, the Corporation shall be entitled to participate therein at its own expense. Except as otherwise provided below, at the option of the Corporation, the Corporation, alone or jointly with any other notified indemnifying party, shall be entitled to assume the defense of any suchClaim relating to Covered Events of which Indemnitee notifies the Corporation, with counsel reasonably satisfactory to Indemnitee. After notice from the Corporation to Indemnitee of the Corporation's decision to assume the defense of the Claim, the Corporation shall not be liable to Indemnitee under this Agreement for any Expenses subsequently incurred by Indemnitee in connection with the defense of the Claim other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ counsel in such claimClaim but the Expenses in connection with employment of such counsel shall be borne by Indemnitee unless (i) the employment of such counsel by Indemnitee has been authorized by the Corporation, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or (ii) Indemnitee shall have reasonably concluded that there is may be a conflict of interest between it the Corporation and the
(b) If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved Party, the obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary Indemnitee in the defense or settlement conduct of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim Claim, or litigation provided that (iii) the Indemnifying Party Corporation shall direct and control not within sixty (60) days in fact have employed counsel to assume the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful Claim, in each of which cases the Expenses in connection with employment of Indemnitee's counsel shall be borne by the defenseCorporation. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party.
(c) If the Indemnifying Party Corporation shall not be entitled to assume the defense of any Claim relating to Covered Events as to which Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Corporation and Indemnitee in the course of defense of such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved PartyClaim.
6.2.3. The Indemnifying Party Corporation shall promptly reimburse the Aggrieved Party for the amount of all expenseshave no obligation under this Agreement with respect to any amounts paid, legal or otherwiseto be paid, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made any Claim relating to any Covered Event without the express prior written consent of the Indemnifying Party, which Corporation to any related settlement. In no event shall the Corporation authorize any settlement imposing any liability or other obligations on Indemnitee without the express prior written consent of Indemnitee. Neither the Corporation nor Indemnitee shall not be unreasonably withheld. If no settlement of the claim or litigation is made, the Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of withhold consent to any judgment rendered with respect to such claim or in such litigation and of all expenses, legal or otherwise, as incurred by the Aggrieved Party in the defense against such claim or litigationproposed settlement.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitations.
Appears in 1 contract
Defense. (a) Promptly after the receipt by any person entitled to indemnification under Section 9.2 5.1 and 9.3 herein 5.2 of this Agreement of notice of (i) any claim or (ii) the commencement of any action or proceeding, such party (the "“Aggrieved Party"”) will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 5.1 and 9.3 herein 5.2 of this Agreement (the "“Indemnifying Party"”), give such Indemnifying Party written notice of such claim or the commencement of such action or proceeding and shall permit the Indemnifying Party to assume the defense of any such claim or any proceeding or litigation resulting from such claim, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is a conflict of interest between it and thethe Indemnifying Party in the conduct of the defense of such action. Failure by the Indemnifying Party to notify the Aggrieved Party of its election to defend any such proceeding or action within a reasonable time, but in no event more than 15 days after written notice thereof shall have been given to the Indemnifying Party, shall be deemed a waiver by the Indemnifying Party of its right to defend such action.
(b) If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved Party, the obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Party shall direct and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party.
(c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld. If no settlement of the claim or litigation is made, the Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of any judgment rendered with respect to such claim or in such litigation and of all expenses, legal or otherwise, as incurred by the Aggrieved Party in the defense against such claim or litigation.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the one-year period of following the applicable statute of limitationsClosing Date unless otherwise provided herein.
Appears in 1 contract
Defense. If the facts relating to a Loss arise out a Third Party Claim, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor shall, by giving written notice to the Indemnified Party within 15 days following its receipt of the notice of such claim, assume the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expense; PROVIDED, HOWEVER, that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate therein, but the fees and expenses of such counsel shall be at the Indemnified Party's own expense, unless (a) Promptly after the receipt employment thereof has been specifically authorized by any person entitled the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to indemnification under Section 9.2 the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and 9.3 herein in the reasonable judgment of notice of (i) any claim such counsel it is advisable for such Indemnified Party to employ separate counsel, or (iic) the commencement of any action or proceeding, such party (the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"), give such Indemnifying Party written notice of such claim or the commencement of such action or proceeding and shall permit the Indemnifying Party Indemnity Obligor has failed to assume the defense of any such claim action and employ counsel reasonably satisfactory to the Indemnified Party. Whether or any proceeding not the Indemnity Obligor defends or litigation resulting from prosecutes such claim, unless all the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is a conflict of interest between it and the
(b) If the Indemnifying Party assumes parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim or litigation resulting therefrom with counsel reasonably acceptable effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Aggrieved Party, the obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Party shall direct and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party.
(c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Indemnified Party in connection with any Loss arising out of a Third Party Claim, the defense against or settlement of such claim or litigation. No settlement of claim or litigation Indemnity Obligor shall be made subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnifying Indemnified Party, which consent shall not be unreasonably withheld. If no settlement of the claim or litigation is made, the Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of any judgment rendered with respect to such claim or in such litigation and of all expenses, legal or otherwise, as incurred by the Aggrieved Party in the defense against such claim or litigation.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitations.
Appears in 1 contract
Sources: Consulting Agreement (Ultrexx Corp)
Defense. (a) Promptly after the receipt by any person entitled to indemnification under Section 9.2 and 9.3 herein of notice of (i) any claim or (ii) the commencement of any action or proceeding, such party (the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"), give such Indemnifying The Indemnified Party written notice of such claim or the commencement of such action or proceeding and shall permit the Indemnifying Indemnitor to assume the defense of such Claim and any litigation resulting therefrom (and to prosecute by way of counterclaim or third party complaint any claim against such third party arising out of or relating to the Claim in question) upon receipt by the Indemnified Party of the Indemnitor's written acknowledgment of its obligation to indemnify the Indemnified Party with respect to the Claim and agreement to assume the defense of all claims or counts of such Claim. After giving such written agreement, the Indemnitor shall not be liable under this Agreement for any legal or other expenses subsequently incurred by the Indemnified Party in connection with such defense but the Indemnitor shall be responsible for all such expenses incurred by the Indemnified Party in connection with the Claim prior to the assumption of the defense by the Indemnitor. Notwithstanding the foregoing, any Indemnified Party shall be entitled to conduct its own defense at the cost and expense of the Indemnitor if the Indemnified Party can establish, by reasonable evidence, that the conduct of its defense by the Indemnitor would reasonably be likely to prejudice the Indemnified Party due to the nature of any claims or counterclaims presented or by virtue of a conflict between the interest of the Indemnified Party and the Indemnitor, and provided further that in any event the Indemnified Party may participate in such defense at its own expense. Counsel selected by the Indemnitor or by the Indemnified Party to defend any Claim shall be subject to the reasonable approval of the other party. If the Indemnitor fails to assume the defense of any such claim or any proceeding or litigation resulting from such claim, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is Claim as provided above within a conflict of interest between it and the
reasonable time (b) If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved Party, the obligations of the Indemnifying Party as to such claim which shall be limited to taking all steps necessary in the defense or settlement such period of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Party shall direct and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall time as will not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent reasonable judgment of the Aggrieved Indemnified Party, or result in prejudice to the rights of the Indemnified Party) after due notice has been given of a Claim, then until such time as the Indemnitor shall make such assumption, the Indemnified Party shall have the right to prosecute and conduct its own defense by counsel of its choice; provided, however, that the Indemnified Party may not enter into any settlement, except with the written consent of the Aggrieved Party.
(c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against compromise or settlement of such claim or litigation. No settlement of claim or litigation shall be made thereof without the consent of the Indemnifying PartyIndemnitor, which consent shall not be unreasonably withheld, conditioned or delayed. If no settlement Such defense shall be at the cost and expense of the claim Indemnitor if the Indemnitor subsequently assumes such defense as provided above, or litigation if it is made, subsequently determined that the Indemnifying Indemnitor is or was obligated to indemnify the Indemnified Party shall promptly reimburse the Aggrieved Party for the amount of any judgment rendered with respect to such claim Claim. Notwithstanding the foregoing: (i) if a Claim seeks equitable relief; or (ii) if the subject matter of a Claim relates to the ongoing business of any of the Purchaser Indemnified Parties, which Claim, if decided against any of the Purchaser Indemnified Parties, would have a Material Adverse Effect on the ongoing business or reputation of any of the Purchaser Indemnified Parties, then, in each such litigation case, the Purchaser Indemnified Parties alone shall be entitled to, acting as a reasonable person under similar circumstances, contest, defend and of all expenses, legal or otherwise, as incurred by the Aggrieved Party settle such Claim in the defense against first instance and, if the Purchaser Indemnified Parties do not contest, defend or settle such claim or litigationClaim, the Sellers' Representative shall then have the right to contest and defend (but not settle) such Claim.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitations.
Appears in 1 contract
Defense. In the event any Third Party shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters covered by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within thirty (a30) Promptly days after written notice by the receipt Indemnified Party (the “Notice”) to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel to defend any such demand, claim or lawsuit; provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, to participate in the defense of any person entitled suit, action or proceeding brought against it with respect to which indemnification under Section 9.2 and 9.3 herein of notice of may be sought hereunder; provided, if (i) the named parties to any claim such proceeding (including any interpleaded parties) include both the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the commencement employment of any action or proceeding, counsel by such party (Indemnified Party has been authorized in writing by the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"), give such Indemnifying Party written notice of such claim which authorization will not be unreasonably withheld, or the commencement of such action or proceeding and shall permit (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of any such claim or any proceeding or litigation resulting from such claim, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is within a conflict of interest between it and the
(b) If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved Partyreasonable time; then, the obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Indemnified Party shall direct have the right to retain its own counsel at the sole cost and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party.
(c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the consent expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent shall not be unreasonably withheldto entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If no settlement any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the claim or litigation is madeIndemnified Party, the Indemnifying Party shall promptly will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse the Aggrieved such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the amount reasonable fees and expenses of any judgment rendered with respect counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within thirty (30) days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or in such litigation and of all expenses, legal or otherwiselawsuit, as incurred it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Aggrieved Indemnifying Party in on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party’s defense of the action is actually prejudiced by such failure. The assumption of the defense against such claim or litigation.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice non-assumption of the claim has been made and delivered within defense, by the period of the applicable statute of limitationspurported Indemnifying Party will not affect such party’s right to dispute its obligation to provide indemnification hereunder.
Appears in 1 contract
Sources: Share Acquisition Agreement (Intelligent Highway Solutions, Inc.)
Defense. (a) Promptly after The Indemnifying Party shall have the receipt by any person entitled right to indemnification under Section 9.2 and 9.3 herein direct, through counsel of notice of (i) any claim its own choosing, the defense or (ii) the commencement settlement of any action or proceedingproceeding brought against the Indemnified Party in respect of Third Party Claims; provided, such party (the "Aggrieved Party") willhowever, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"), give such Indemnifying Party written notice of such claim or the commencement of such action or proceeding and shall permit that the Indemnifying Party shall not settle any matter without obtaining the Indemnified Party's prior consent thereto if such settlement provides for any remedy other than the payment of money damages or that does not provide for a full release of the Indemnified Party or, regardless of the terms of such settlement, if the Indemnifying Party disputes its liability with respect to the Third Party Claim. If the Indemnifying Party elects to assume the defense of any such claim or any proceeding or litigation resulting from proceeding, the Indemnified Party may participate in such claim, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is a conflict of interest between it and the
(b) defense at its own expense. If the Indemnifying Party fails to defend or if after commencing or undertaking any such defense fails to prosecute or withdraws from such defense other than as a result of a settlement, the Indemnified Party shall have the right to direct, at the Indemnifying Party's sole cost and expense, through counsel of its own choosing, the defense or settlement of any such action or proceeding; provided, however, that if the Indemnified Party assumes the defense of any such claim or litigation resulting therefrom proceeding pursuant to this SECTION 10.3 and proposes to settle such claim or proceeding prior to a final judgment thereon or to forego appeal with counsel reasonably acceptable to respect thereto, then the Aggrieved Party, the obligations of Indemnified Party shall give the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom prompt written notice thereof and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Party shall direct have the right to participate in and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party.
(c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld) to the settlement or assume or reassume the defense of such claim or proceeding. If no settlement Notwithstanding the foregoing provisions of this SECTION 10.3(b), if the Indemnifying Party disputes its liability to the Indemnified Party and if such dispute is resolved in favor of the claim or litigation is madeIndemnifying Party by final, nonappealable order of a court of competent jurisdiction, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this SECTION 10.3(b), and the Indemnified Party shall promptly reimburse the Aggrieved Indemnifying Party in full for the amount of any judgment rendered with respect to such claim or in such litigation all costs and of all expenses, legal or otherwise, as expenses incurred by the Aggrieved Indemnifying Party in connection with such Third Party Claim. The party directing the defense shall pursue such defense diligently and promptly. The parties shall cooperate in the defense against of all Third Party Claims. In connection with the defense of any Third Party Claim, each party shall make available to the party controlling such claim defense any books, records, or litigationother documents within its control that are reasonably requested in the course of or necessary or appropriate for such defense.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitations.
Appears in 1 contract
Sources: Stock Acquisition Agreement (Zenith National Insurance Corp)
Defense. In the case of a Claim involving the assertion of a claim by a third party (a) Promptly after the receipt by any person entitled whether pursuant to indemnification under Section 9.2 and 9.3 herein of notice of (i) any claim a lawsuit or (ii) the commencement of any other legal action or proceedingotherwise, such party (the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"a “Third-Party Claim”), give such the Indemnifying Party may, upon written notice to the Indemnified Party, take control of the defense and investigation of such claim or Third-Party Claim if the commencement Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of such action or proceeding and shall permit the Indemnifying Party to assume indemnify the defense Indemnified Party with respect to all elements of any such claim or any proceeding or litigation resulting from such claim, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Third-Party or there is a conflict of interest between it and the
(b) Claim. If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom with Third-Party Claim, the Indemnifying Party shall select counsel reasonably acceptable to the Aggrieved Indemnified Party (and separate from counsel to the Indemnifying Party if there is any conflict or divergence of interest between the Indemnifying Party and the Indemnified Party) to conduct the defense of such claims or legal proceedings and, at the obligations sole cost and expense of the Indemnifying Party as to such claim Party, shall be limited to taking take all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Party shall direct and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defensethereof. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, not consent to a settlement of or the entry of any judgment, except with judgment arising from any such Third-Party Claim without the prior written consent of the Aggrieved Party, Indemnified Party (which consent shall not be unreasonably withheld or enter into any settlement, except with the written consent of the Aggrieved Party.
(c) If the Indemnifying delayed). The Indemnified Party shall be entitled to participate in (but not assume control) the defense of any such Third-Party Claim, with its own counsel and at its own expense; provided, however, that the Indemnified Party shall be entitled to settle any Third-Party Claim involving criminal penalties, civil fines or harm without the consent, but at the expense, of the Indemnifying Party if the Indemnifying Party shall unreasonably fail to do so after being requested to do so by the Indemnified Party. If the Indemnifying Party does not notify the Indemnified Party that it will assume the defense of such Third-Party Claim within thirty (30) days after the Indemnifying Party receives notice of such claim or litigation resulting therefrom, from the Aggrieved Indemnified Party: (a) the Indemnified Party may defend against such claim or litigation Third-Party Claim in such manner as it may deem appropriate and reasonably satisfactory to appropriate, provided that the Aggrieved Party. The Indemnifying Indemnified Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or not consent to a settlement of or the entry of any judgment arising from such claim or litigation. No settlement of claim or litigation shall be made Third-Party Claim without the prior written consent of the Indemnifying Party, Party (which consent shall not be unreasonably withheld. If no settlement of the claim withheld or litigation is made, delayed); and (b) the Indemnifying Party shall promptly reimburse be entitled to participate in (but not control) the Aggrieved defense of such action, with its counsel and at its own expense. Regardless of which Party for shall assume the amount defense of the Third-Party Claim, the Parties agree to cooperate fully with one another in connection therewith. Such cooperation shall include the providing of records and information which are relevant to such Third-Party Claim and making employees and officers available on a mutually convenient basis to provide additional information and explanation of any judgment rendered with respect material provided hereunder and to such claim act as a witness or respond to legal process, in such litigation each case to the extent that the Party being requested to provide records and of all expenses, legal information or otherwise, as incurred by the Aggrieved Party in the defense against such claim or litigationto make employees and officers available can do so without waiving any evidentiary privileges to which it is entitled.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitations.
Appears in 1 contract
Sources: Asset Purchase Agreement
Defense. (a) Promptly after the receipt by any person entitled to indemnification under Section 9.2 and 9.3 herein of notice of (i) In connection with any claim or by a third party which may give rise to indemnity hereunder (ii) the commencement of any action or proceeding, such party (the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"a “Third-Party Claim”), give such Indemnifying Party written notice of such claim or the commencement of such action or proceeding and shall permit the Indemnifying Party to may assume the defense of any such claim Third Party Claim, upon reasonably prompt written notice to the Indemnified Party, which defense shall be prosecuted by the Indemnifying Party to a final conclusion or settlement in accordance with the terms hereof; provided, however, that the failure to notify the Indemnified Party or any proceeding delay in notifying the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder. The Indemnifying Party shall diligently prosecute the defense of a Third-Party Claim, including by assuming control of the defense of such Third-Party Claim and appointing counsel reasonably acceptable to the Indemnified Party. Notwithstanding the foregoing, the Indemnifying Party shall not have the right to assume or litigation resulting from continue control of the defense of any Third-Party Claim if such claimThird-Party Claim (i) seeks non-monetary relief, unless the action (ii) involves criminal or proceeding seeks an injunction quasi-criminal allegations or other similar relief against the Aggrieved Party regulatory matters, (iii) results in, or there is could reasonably be expected to result in, under applicable standards of professional conduct, a conflict of interest between it and the
(b) If the Indemnifying Party assumes and the defense of any Indemnified Party with respect to such Third-Party Claim, or (iv) involves a claim that, if adversely determined, would be reasonably expected to establish a precedent, custom, or litigation resulting therefrom with counsel reasonably acceptable practice materially adverse to the Aggrieved Party, the obligations continuing business interests or prospects of the Indemnifying Indemnified Party as to such claim shall be limited to taking all steps necessary in or the defense or settlement operations of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any lossesCompany (each, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Party shall direct and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defensean “Exception Claim”). The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, will not consent to the entry of any judgment, except with the written consent of the Aggrieved Party, and judgment or enter into any settlementsettlement with respect to, except or cease to defend, any claim by a third party with the prior written consent, which such consent (A) may be provided at Indemnified Party’s sole discretion with respect to a claim that involves criminal or quasi-criminal allegations, regulatory matters, or involves a claim that, if adversely determined, would be reasonably expected to establish a precedent, custom, or practice materially adverse to the continuing business interests or prospects of the Aggrieved Party.
Indemnified Party or the operations of the Company, and (cB) If shall not be unreasonably withheld, conditioned, or delayed with respect to all other claims by a third party. In the event that (i) Indemnifying Party shall does not assume the defense of a Third-Party Claim, (i) the Indemnified Party does not diligently prosecute the defense of any Third-Party Claim as set forth in this Section 8(d)(ii) or such claim Third-Party Claim is, or litigation resulting therefromat any time becomes, an Exception Claim, the Aggrieved Indemnified Party may defend against such claim or litigation Third-Party Claim in such manner as it may deem reasonably appropriate and reasonably satisfactory (including consent to the Aggrieved Party. The Indemnifying entry of any judgment or enter into any settlement with respect to such Third-Party shall promptly reimburse Claim), at the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the consent sole cost and expense of the Indemnifying Party, which consent shall not be unreasonably withheld. If no settlement of the claim or litigation is made, the Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of any judgment rendered with respect to such claim or in such litigation and of all expenses, legal or otherwise, as incurred by the Aggrieved Party in the defense against such claim or litigation.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitations.
Appears in 1 contract
Defense. The Representative shall have the right, at its option (asubject to the limitations set forth in Section 9.2(c) Promptly after below) and at its own expense, by written notice to Parent (which notice shall not constitute an admission or agreement that indemnification is owed to the receipt by any person Parent Indemnitees hereunder), to assume the entire control of, subject to the right of Parent to participate (at its expense and with counsel of its choice) in, the defense, compromise or settlement of the Third Party Claim as to which such Notice of Claim has been given, and shall be entitled to indemnification under Section 9.2 appoint a recognized and 9.3 herein of notice of (i) any claim or (ii) reputable counsel reasonably acceptable to Parent to be the commencement of any action or proceeding, lead counsel in connection with such party (defense. If the "Aggrieved Party") will, if claim with respect thereto Representative is made against any party obligated to provide indemnification pursuant to Section 9.2 permitted and 9.3 herein (the "Indemnifying Party"), give such Indemnifying Party written notice of such claim or the commencement of such action or proceeding and shall permit the Indemnifying Party elects to assume the defense of a Third Party Claim: (i) the Representative shall diligently and in good faith defend such Third Party Claim and shall keep Parent reasonably informed of the status of such defense; provided, however, that Parent shall have the right to approve any settlement, which approval will not be unreasonably withheld, delayed or conditioned; and (ii) Parent and Merger Sub shall cooperate fully in all respects with the Representative in any such claim defense, compromise or any proceeding or litigation resulting from such claimsettlement thereof, unless including, without limitation, the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is a conflict selection of interest between it counsel, and the
(b) If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable Parent and Merger Sub shall as promptly as practicable make available to the Aggrieved PartyRepresentative all pertinent information and documents under its control. Notwithstanding the foregoing and anything to the contrary herein, the obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and event that the Representative provides prior written notice to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out Parent of any settlement or compromise of, or offer to settle or compromise, any judgment in connection with third-party claim and Parent or Merger Sub withholds its consent to such claim settlement or litigation resulting therefrom. The Aggrieved Party may participate, at its expensecompromise then, in the defense event indemnification is ultimately determined to be owing to a Parent Indemnitee hereunder, in no event shall indemnification be provided to the Parent Indemnitees in respect of such claim matter in an amount greater than the monetary amount contained in such settlement or litigation provided that the Indemnifying Party shall direct and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Partycompromise of, or enter into offer to settle or compromise, any settlement, except with the written consent of the Aggrieved Partythird-party claim.
(c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld. If no settlement of the claim or litigation is made, the Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of any judgment rendered with respect to such claim or in such litigation and of all expenses, legal or otherwise, as incurred by the Aggrieved Party in the defense against such claim or litigation.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitations.
Appears in 1 contract
Defense. (a) Promptly after the receipt by any person entitled to indemnification under Section 9.2 and or 9.3 herein of notice of (i) any claim or (ii) the commencement of any action or proceeding, such party (the "Aggrieved Party") will, if the claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and or 9.3 herein (the "Indemnifying Party"), give such Indemnifying Party written notice of such claim or the commencement of such action or proceeding and shall permit the Indemnifying Party to assume the defense of any such claim or any proceeding or litigation resulting from such claim, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is a conflict of interest between it and thethe Indemnifying Party in the conduct of the defense of such action. Failure by the Indemnifying Party to notify the Aggrieved Party of its election to defend any such proceeding or action within a reasonable time, but in no event more than 15 days after written notice thereof shall have been given to the Indemnifying Party, shall be deemed a waiver by the Indemnifying Party of its right to defend such action.
(b) If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved Party, the obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Party shall direct and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party.
(c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld. If no settlement of the claim or litigation is made, the Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of any judgment rendered with respect to such claim or in such litigation and of all expenses, legal or otherwise, as incurred by the Aggrieved Party in the defense against such claim or litigation.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitations.
Appears in 1 contract
Defense. (a) Promptly after The Indemnifying Party shall have the receipt by any person entitled right to indemnification under Section 9.2 and 9.3 herein direct, through counsel of notice of (i) any claim its own choosing, the defense or (ii) the commencement settlement of any action or proceedingproceeding brought against the Indemnified Party in respect of Third Party Claims; provided, such party (the "Aggrieved Party") willhowever, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"), give such Indemnifying Party written notice of such claim or the commencement of such action or proceeding and shall permit that the Indemnifying Party shall not settle any matter without obtaining the Indemnified Party's prior consent thereto if such settlement provides for any remedy other than the payment of money damages or that does not provide for a full release of the Indemnified Party or, regardless of the terms of such settlement, if the Indemnifying Party disputes its liability with respect to the Third Party Claim. If the Indemnifying Party elects to assume the defense of any such claim or any proceeding or litigation resulting from proceed ing, the Indemnified Party may participate in such claim, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is a conflict of interest between it and the
(b) defense at its own expense. If the Indemnifying Party fails to defend or, after commencing or undertaking any such defense, fails to prosecute or withdraws from such defense other than as a result of a settlement, the Indemnified Party shall have the right to direct, at the Indemnifying Party's sole cost and expense, through counsel of its own choosing, the defense or settlement of any such action or proceeding; provided, however, that if the Indemnified Party assumes the defense of any such claim or litigation resulting therefrom proceeding pursuant to this Section 10.3 and proposes to settle such claim or proceeding prior to a final judgment thereon or to forego appeal with counsel reasonably acceptable to respect thereto, then the Aggrieved Party, the obligations of Indemnified Party shall give the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom prompt written notice thereof and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Party shall direct have the right to participate in and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party.
(c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld) to the settlement or assume or reassume the defense of such claim or proceeding. If no settlement Notwithstanding the foregoing provisions of this Section 10.3(b), if the Indemnifying Party disputes its liability to the Indemnified Party and if such dispute is resolved in favor of the claim or litigation is madeIndemnifying Party by final, nonappealable order of a court of competent jurisdiction, the Indemnifying Party shall promptly not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.3(b), and the Indemnified Party shall reimburse the Aggrieved Indemnifying Party in full for the amount of any judgment rendered with respect to such claim or in such litigation all costs and of all expenses, legal or otherwise, as expenses incurred by the Aggrieved Indemnifying Party in con nection with such Third Party Claim. The party directing the defense shall pursue such defense diligently and promptly. The parties shall cooperate in the defense against shall pursue such claim defense diligently and promptly. The parties shall cooperate in 48 57 the defense of all Third Party Claims. In connection with the defense of any Third Party Claim, each party shall make available to the party controlling such defense any books, records or litigationother documents within its control that are reasonably requested in the course of or necessary or appropriate for such defense, provided appropriate arrangements are made to safeguard the confidentiality of such materials.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitations.
Appears in 1 contract
Defense. (a) Promptly after If any Action that might reasonably be expected to result in an Indemnifiable Claim is asserted or threatened by a third party against any Indemnified Party, the receipt by any person entitled Indemnifying Party may elect to indemnification under Section 9.2 and 9.3 herein of notice of (i) any claim or (ii) control the commencement of any action or proceeding, such party (defense thereof with experienced counsel reasonably satisfactory to the "Aggrieved Indemnified Party") will. Notwithstanding the foregoing, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"), give such Indemnifying Party written within fifteen (15) days after receipt of a notice of such claim or the commencement of such action or proceeding and shall permit the Indemnifying Party Action fails to assume the defense of any such claim or any proceeding or litigation resulting from such claim, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is a conflict of interest between it and the
(b) If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable give written notice to the Aggrieved Party, the obligations of the Indemnifying Indemnified Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Party shall direct and control undertake the defense thereof or thereafter fails to timely assume such defense, then the Indemnified Party shall have the right to defend, compromise or settle the Action for the account of the Indemnifying Party. An assertion by the Indemnifying Party of a reservation of rights with respect to such Action shall not constitute a failure to give written notice that it shall undertake such defense. If, after the Indemnifying Party has undertaken the defense of such claim the Action, the Indemnified Party reasonably believes (and gives notice thereof to the Indemnifying Party) that an Indemnifiable Claim may materially adversely affect the business or litigation. The Aggrieved operations of the Indemnified Party, then the Indemnified Party shall cooperate and make available all books and records reasonably necessary and useful in connection with have the defense. The Indemnifying Party shall not, right to participate in the defense of such claim or any litigation resulting therefromthe Action at its own expense, consent subject to entry of any judgment, except with the written consent reasonable direction of the Aggrieved Party, or enter into any settlement, except with the written consent other party. Each of the Aggrieved Party.
(c) If the Indemnifying Party and the Indemnified Party shall not assume give all reasonable assistance to the other party in connection therewith. In any case, the Indemnified Party shall, subject to Section 10.10, make available to the Indemnifying Party and its attorneys, accountants, employees, agents, advisors and consultants, at reasonable times during normal business hours, all books, records, documents, employees, agents, advisors and consultants under its control and relating to such Action or such other matter as to which the Indemnified Party is or was required to give notice. The party having control of the defense of any such claim an Action shall notify the other party of every proposal, oral or litigation resulting therefromwritten, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the consent of the Indemnifying Partysettlement, which consent shall not be unreasonably withheld. If no settlement of the claim it receives or litigation is made, the Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of any judgment rendered with respect to such claim or in such litigation and of all expenses, legal or otherwise, as incurred by the Aggrieved Party in the defense against such claim or litigationmakes.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitations.
Appears in 1 contract
Defense. (a) Promptly after If any of the receipt by any person entitled indemnified parties is made or threatened to indemnification under Section 9.2 and 9.3 herein of notice of (i) any claim be ------- made a defendant in or (ii) the commencement of party to any action or proceeding, such judicial or administrative, instituted by any third party (for the "Aggrieved Party") will, if claim with respect thereto liability under which or the costs or expenses of which any of the indemnified parties is made against any party obligated entitled to provide indemnification be indemnified pursuant to Section 9.2 and 9.3 herein this Paragraph I (the any such third party action or proceeding being referred to as an "Indemnifying PartyIndemnification Claim"), the indemnified party or parties shall give prompt notice thereof to the indemnifying party; provided that the failure to give such Indemnifying Party written notice of shall not affect the indemnified -------- party or parties' ability to seek indemnification hereunder unless such claim failure has materially and adversely affected the indemnifying party or the commencement of such action or proceeding and parties' ability to prosecute successfully an Indemnification Claim. Each indemnified party shall permit the Indemnifying Party indemnifying party, at its own expense, to assume the defense of any such claim or any proceeding litigation to which this Paragraph 1 may be applicable, by counsel reasonably satisfactory to the indemnified party or litigation resulting parties; provided, that the indemnified party or parties shall be entitled at any time, -------- at its or their own cost and expense (which expense shall not be recoverable from the indemnifying party unless the indemnifying party is not adequately representing or, because of a conflict of interest, may not adequately represent, the indemnified party or parties' interests), to participate in such claim, unless the action or proceeding seeks an injunction and to be represented by attorneys of its or other similar relief against the Aggrieved Party or there is a conflict of interest between it and the
(b) their own choosing. If the Indemnifying Party assumes indemnified party or parties elects to participate in such defense, such party or parties will cooperate with the indemnifying party in the conduct of such defense. The indemnified party or parties may not concede, settle or compromise any Indemnification Claim without the consent of the indemnifying party. The indemnifying party, in the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved Partylitigation, the obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Party shall direct and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in except with the defense approval of such claim or any litigation resulting therefromeach indemnified party, consent to entry of any judgment, except with the written consent of the Aggrieved Party, judgment or enter into any settlement, except with settlement which does not include as an unconditional term thereof the written consent of the Aggrieved Party.
(c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred giving by the Aggrieved Party claimant or plaintiff to such indemnified party or parties of a full and complete release from all liability in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld. If no settlement of the claim or litigation is made, the Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of any judgment rendered with respect to such claim or in such litigation and of all expenses, legal or otherwise, as incurred by the Aggrieved Party in the defense against such claim or litigation.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitations.
Appears in 1 contract
Defense. (a) Promptly after the receipt If any claim, demand, or liability is asserted by any person entitled third party against an indemnified party, the indemnifying party shall upon written request of the Indemnified Party, defend any actions or proceedings brought against the Indemnified Party in respect of matters embraced by the indemnity, but the indemnified party shall have the right to indemnification under Section 9.2 conduct and 9.3 herein control the defense, compromise or settlement of notice any Indemnifiable Claim if the Indemnified Party chooses to do so, on behalf of (i) any claim or (ii) and for the commencement account and risk of the Indemnifying Party who shall be bound by the result so obtained to the extent provided herein. If after a request to defend any action or proceeding, such party (the "Aggrieved Indemnifying Party neglects to defend the Indemnified Party") will, a recovery against the latter suffered by it in good faith, is conclusive in its favor against the Indemnifying Party, provided however that, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"), give such Indemnifying Party written has not received reasonable notice of such claim or the commencement of such action or proceeding and against Indemnified Party, or is not allowed to control its defense, judgment against the Indemnified Party is only presumptive evidence against the Indemnifying Party. Each Party hereto to the extent that it is or becomes an Indemnifying Party, hereby stipulates that a judgment again an Indemnified Party shall permit be conclusive against the Indemnifying Party for purposes of the indemnification, unless specified otherwise above, the Parties shall cooperate in the defense of all third party claims, which may give rise to assume indemnifiable claims hereunder. In connection with the defense of any such claim or any proceeding or litigation resulting from such claim, unless each party shall make available to the action or proceeding seeks an injunction party controlling such defense, any books, records or other similar relief against the Aggrieved Party or there is a conflict of interest between it and the
(b) If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom with counsel documents within its control that are reasonably acceptable to the Aggrieved Party, the obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary requested in the defense or settlement course of such claim defense and necessary or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with appropriate for such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Party shall direct and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party.
(c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld. If no settlement of the claim or litigation is made, the Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of any judgment rendered with respect to such claim or in such litigation and of all expenses, legal or otherwise, as incurred by the Aggrieved Party in the defense against such claim or litigation.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitations.
Appears in 1 contract
Defense. In the event any Person or entity not a party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (athe "Notice") Promptly after to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the receipt next sentence, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, to participate in the defense of any person entitled suit, action or proceeding brought against it with respect to which indemnification under Section 9.2 and 9.3 herein of notice of may be sought hereunder; provided, however, if (i) the named parties to any claim such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the commencement employment of any action or proceeding, counsel by such party (Indemnified Party has been authorized in writing by the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"), give such Indemnifying Party written notice of such claim or the commencement of such action or proceeding and shall permit (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of any such claim or any proceeding or litigation resulting from such claim, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is within a conflict of interest between it and the
(b) If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved Partyreasonable time; then, the obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Indemnified Party shall direct have the right to retain its own counsel at the sole cost and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party.
(c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the consent expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent shall not be unreasonably withheldto entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If no settlement any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the claim or litigation is madeIndemnified Party, the Indemnifying Party shall promptly will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse the Aggrieved such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the amount reasonable fees and expenses of any judgment rendered with respect counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or in such litigation and of all expenses, legal or otherwiselawsuit, as incurred it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Aggrieved Indemnifying Party in on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense against such claim or litigation.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitationsaction is actually prejudiced by such failure.
Appears in 1 contract
Defense. (a) Promptly after the receipt If any claim, demand or liability is asserted by any person entitled to indemnification under Section 9.2 third party against any Indemnified Party, the Indemnifying Party shall have the right and 9.3 herein shall upon the written request of notice of (i) the Indemnified Party, defend any claim or (ii) Actions brought against the commencement Indemnified Party in respect of any Indemnifiable Claims with counsel of its choice reasonably acceptable to the Indemnified Party and, in the case of a Tax-related Action, tax advisors of its choice reasonably acceptable to the Indemnified Party. In any such action or proceeding, the Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such party counsel shall be at its own expense unless (a) the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"), give such Indemnifying Party written notice and the Indemnified Party mutually agree in writing to the retention of such claim counsel, or (b) the commencement of named parties to any such suit, action or proceeding and shall permit (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, and in the reasonable judgment of the Indemnified Party, representation of the Indemnifying Party and the Indemnified Party by the same counsel would be inadvisable due to assume potential conflicts of interests between them. The Parties shall cooperate and may participate in the defense of any such claim or any proceeding or litigation resulting from such claim, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is a conflict of interest between it and the
(b) all third-party claims which may give rise to Indemnifiable Claims hereunder. If the Indemnifying Party assumes the defense defense, (i) it shall be conclusively established for purposes of any such claim or litigation resulting therefrom with counsel reasonably acceptable this Agreement that the claims made in the Action are within the scope of and subject to the Aggrieved Partyindemnification, the obligations of but only if the Indemnifying Party as to such claim shall be limited to taking all steps necessary in assumed the defense pursuant to clause (a) above and not clause (b), and (ii) no compromise or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused claims may be effected by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Party shall direct and control without the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the Indemnified Party's written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party.
(c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld) unless there is no finding or admission of any violation of legal requirement or any violation of the rights of any Person and no effect on any other claims that may be made against the Indemnified Party, or the exclusive relief provided is monetary damages that are paid in full by the Indemnifying Party. If no settlement written notice is given to an Indemnifying Party of the claim or litigation commencement of any Action and the Indemnifying Party does not, within twenty (20) days after the Indemnified Party's written notice is madegiven, give written notice to the Indemnified Party of its election to assume the defense of such Action, the Indemnifying Party shall promptly reimburse be bound by any determination made in such Action or any compromise or settlement effected by the Aggrieved Party for Indemnified Party. In connection with the amount defense of any judgment rendered with respect claim, each Party shall make available to the Party controlling such claim defense, any books, records or in such litigation and of all expenses, legal or otherwise, as incurred by the Aggrieved Party other documents within its control that are reasonably requested in the defense against course of or necessary or appropriate for such claim or litigationdefense.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitations.
Appears in 1 contract
Sources: Asset Purchase Agreement (Hovnanian Enterprises Inc)
Defense. (a) Promptly after If the receipt by facts pertaining to a Loss arise out of the claim of any person entitled to indemnification under Section 9.2 and 9.3 herein of notice of (i) third party, or if there is any claim or (ii) against a third party available by virtue of the commencement circumstances of any action or proceedingthe Loss, such the indemnifying party (the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"), give such Indemnifying Party written notice of such claim or the commencement of such action or proceeding and shall permit the Indemnifying Party to may assume the defense or the prosecution thereof by written notice to the party seeking indemnification, including the employment of counsel or accountants, in each case reasonably satisfactory to such party, at their cost and expense. The party seeking indemnification 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 party seeking indemnification shall be at its expense. The indemnifying party shall not be liable for any settlement of any such claim or any proceeding or litigation resulting from such claim, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is a conflict of interest between it and the
(b) If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved Party, the obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at effected without its expense, in the defense of such claim or litigation provided that the Indemnifying Party shall direct and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the prior written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party.
(c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the consent of the Indemnifying Partyconsent, which consent shall not be unreasonably withheld; provided that if the indemnifying party does not assume the defense or prosecution of a claim within 30 days of notice thereof, the party seeking indemnification may settle such claim without the indemnifying party's consent. If no The Company Holder shall not agree to a settlement of any claim which provides for any relief other than the claim payment of monetary damages or litigation is madewhich could have a material precedential impact or effect on the business or financial condition of the Company and the Subsidiary without Parent's prior written consent. Whether or not the indemnifying party does choose to so defend or prosecute such claim, all the Indemnifying Party parties hereto shall promptly reimburse the Aggrieved Party for the amount of any judgment rendered with respect to such claim or in such litigation and of all expenses, legal or otherwise, as incurred by the Aggrieved Party cooperate in the defense against or prosecution thereof and shall furnish such claim or litigation.
(d) records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The indemnifying party shall be subrogated to all rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice and remedies of the claim has been made and delivered within the period of the applicable statute of limitationsparty seeking indemnification.
Appears in 1 contract
Defense. (a) Promptly after the receipt by If any person entitled to indemnification under Section 9.2 and 9.3 herein of notice of (i) any claim or (ii) the commencement Indemnified Party learns of any action or proceeding, such party (the "Aggrieved Party") will, if matter which may give rise to a claim with respect thereto is made for indemnification against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"), give such an Indemnifying Party written notice of such claim or under this Article XI, then the commencement of such action or proceeding and Indemnified Party shall permit notify the Indemnifying Party thereof promptly and in any event within five (5) Business Days after receiving any written notice from a third party; provided, however, that no delay on the part of the Indemnified Party in notifying the Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless, and then solely to the extent that, the Indemnifying Party is materially prejudiced thereby. Once the Indemnified Party has given notice of the matter to the Indemnifying Party, the Indemnified Party may, subject to the Indemnifying Party's rights to assume the defense of any such claim or any proceeding or litigation resulting from such claimthereof, unless the action or proceeding seeks an injunction or other similar relief defend against the Aggrieved Party or there is a conflict of interest between matter in any manner it and the
(b) If reasonably may deem appropriate. In the event the Indemnifying Party assumes notifies the defense Indemnified Party (after the date the Indemnified Party has given notice of any such claim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved Party, the obligations of matter) that the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in is assuming the defense of such claim or litigation provided that matter, the Indemnifying Party shall direct defend the Indemnified Party against the matter with counsel of its choice reasonably satisfactory to the Indemnified Party. Notwithstanding the foregoing, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and control the defense expenses of such claim or litigation. The Aggrieved counsel shall be at the expense of the Indemnified Party shall cooperate and make available all books and records reasonably necessary and useful in connection with unless (i) the defense. The Indemnifying Party shall not, in the defense employment of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with counsel shall have been authorized in writing by the written consent of the Aggrieved Indemnifying Party, or enter into any settlement, except with the written consent of the Aggrieved Party.
(cii) If the Indemnifying Party shall not assume have employed counsel to fully and properly take charge of the defense of such action within a reasonable time after notice of commencement of the action or (iii) the Indemnified Party shall have reasonably concluded that there are defenses available to it that are different from or additional to those available to one or more of the Indemnifying Parties (in which case the Indemnifying Parties shall not have the right to direct the defense of such action on behalf of the Indemnified Party with respect to such different defenses), in any of which events such fees and expenses shall be borne by the Indemnifying Party. Assumption of the defense of any such claim or litigation resulting therefrom, matter by the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse not prejudice the Aggrieved right of the Indemnifying Party to claim at a later date that such third party action is not a proper matter for indemnification pursuant to this Article XI. The Indemnified Party shall not consent to the amount entry of all expenses, legal a judgment or otherwise, as incurred by the Aggrieved Party in connection enter into any settlement with the defense against or settlement of such respect to any matter which may give rise to a claim or litigation. No settlement of claim or litigation shall be made for indemnification without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheldwithheld or delayed. If no settlement of the claim or litigation is made, the The Indemnifying Party shall promptly reimburse not consent to the Aggrieved Party for the amount entry of any a judgment rendered with respect to such any matter which may give rise to a claim for indemnification or in such litigation and of all expenses, legal enter into any settlement which does not include a provision whereby the plaintiff or otherwise, as incurred by the Aggrieved Party claimant in the defense against such claim or litigation.
(d) The rights to indemnification hereunder shall apply to claims made by either party against matter releases the other whereby Indemnified Party from all Damages with respect thereto, without the written notice consent of the claim has been made and delivered within the period of the applicable statute of limitationsIndemnified Party (not to be unreasonably withheld or delayed).
Appears in 1 contract
Sources: Purchase Agreement (NHP Inc)
Defense. In the event any third Party shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (athe “Notice”) Promptly after to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the receipt next sentence, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit; provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, to participate in the defense of any person entitled suit, action or proceeding brought against it with respect to which indemnification under Section 9.2 and 9.3 herein of notice of may be sought hereunder; provided, however, if (i) the named parties to any claim such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the commencement employment of any action or proceeding, counsel by such party (Indemnified Party has been authorized in writing by the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"), give such Indemnifying Party written notice of such claim or the commencement of such action or proceeding and shall permit (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of any such claim or any proceeding or litigation resulting from such claim, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is within a conflict of interest between it and the
(b) If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved Partyreasonable time; then, the obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Indemnified Party shall direct have the right to retain its own counsel at the sole cost and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party.
(c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the consent expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent shall not be unreasonably withheldto entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If no settlement any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the claim or litigation is madeIndemnified Party, the Indemnifying Party shall promptly will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse the Aggrieved such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the amount reasonable fees and expenses of any judgment rendered with respect counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or in such litigation and of all expenses, legal or otherwiselawsuit, as incurred it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Aggrieved Indemnifying Party in on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party’s defense against such claim or litigation.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitationsaction is actually prejudiced by such failure.
Appears in 1 contract