Indemnification Procedure for Third Party Claims. (a) In the event that any party (the “Indemnified Person”) desires to make a claim against any other party (the “Indemnifying Person”) in connection with any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim or demand made by any Person not a party to this Agreement against the Indemnified Person (a “Third-Party Claim”), such Indemnified Person must notify the Indemnifying Person in writing, of the Third-Party Claim (a “Third-Party Claim Notice”) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice of the Third-Party Claim; provided, that failure to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Person shall have been actually and materially prejudiced as a result of such failure. Upon receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the settlement and related expenses; provided, however, that upon rejection of any settlement and related expenses, the Indemnified Person shall assume control of the defense of such Third-Party Claim and the liability of the Indemnifying Person with respect to such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expenses. (b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person. (c) If the Indemnifying Person fails to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party Claim.
Appears in 20 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement, Asset Purchase Agreement (Alliance MMA, Inc.)
Indemnification Procedure for Third Party Claims. (a) In the event that any party (the “Indemnified Person”) desires to make a claim against any other party (the “Indemnifying Person”) in connection with any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim or demand made by any Person not a party to this Agreement against the Indemnified Person (a “Third-Party Claim”), such Indemnified Person must notify the Indemnifying Person in writing, of the Third-initiation of any legal proceeding against an Indemnified Party Claim (by a “Third-Party Claim Notice”) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice of the Third-Party Claim; provided, that failure to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Person shall have been actually and materially prejudiced as a result of such failure. Upon receipt of the Third-Party Claim Notice from the Indemnified Personthird party, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the absolute right after the receipt of notice, at its option and at its own expense, to approve be represented by counsel of its choice, and to defend against, negotiate, settle (as provided below) or reject the settlement and related expensesotherwise deal with any proceeding, claim, or demand which relates to any loss, liability or damage indemnified against hereunder; provided, however, that upon rejection the Indemnified Party may participate in any such proceeding with counsel of its choice and at its expense. The Indemnifying Party shall not effect any settlement without the consent of the Indemnified Party other than for the payment of money damages in a single lump sum in exchange for a full release of the Indemnified Party with respect to the claim in question without the requirement of any settlement admission of liability or wrongdoing. To the extent the Indemnifying Party elects not to defend such proceeding, claim or demand, and related expensesthe Indemnified Party defends against or otherwise deals with any such proceeding, claim or demand, the Indemnified Person shall assume Party may retain counsel, at the expense of the Indemnifying Party, and control of the defense of such Third-proceeding. To the extent the Indemnifying Party Claim fails or elects not to defend such proceeding, claim or demand and the liability Indemnified Party defends against or otherwise deals with any proceeding, claim or demand, the Indemnified Party will act reasonably and in accordance with its good faith business judgment, and shall not effect any settlement without the consent of Indemnifying Party, which consent shall not be unreasonably withheld. The parties to this Agreement agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any legal proceeding, claim or demand pursuant to this Article XII. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, or a settlement shall have been consummated, or the Indemnified Party and the Indemnifying Person Party shall arrive at a mutually binding agreement with respect to each separate matter alleged to be indemnified by the Indemnifying Party hereunder, the Indemnified Party shall forward to the Indemnifying Party notice of any sums due and owing by it with respect to such Third-matter and the Indemnifying Party Claim shall be limited pay all of the sums so owing to the amount Indemnified Party by wire transfer, certified or the monetary equivalent of the rejected settlement and related expenses.
bank cashier’s check within thirty (b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (1530) days after the giving date of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party Claim.
Appears in 3 contracts
Sources: Transition Agreement (Fsi International Inc), Transition Agreement (Metron Technology N V), Transition Agreement (Fsi International Inc)
Indemnification Procedure for Third Party Claims. (a) In the event that case of any claim asserted by a third party (which claim is subject to indemnification by the “Indemnified Person”) desires to make a claim against any other either party (the “Indemnifying Person”) in connection with any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim or demand made by any Person not a party to this Agreement against the Indemnified Person hereunder, (a “Third-Party Claim”), such Indemnified Person must the party seeking indemnification (the “Indemnitee”) shall notify the Indemnifying Person other party (the “Indemnitor”) promptly after has actual knowledge of any such Third-Party Claim as to which indemnity may be sought (provided that failure to so notify shall not affect the Indemnitor’s obligations hereunder except to the extent materially prejudiced by such failure), and Indemnitee shall permit the Indemnitor, at its sole expense, to assume the defense of any such Third-Party Claim, provided that Indemnitee may participate in writingsuch defense or administration at Indemnitee’s sole expense (provided, however, that if a conflict of interest exists such that separate counsel must be engaged by Indemnitee and the Indemnitor, the Indemnitor shall be responsible for the reasonable fees and costs for such counsel for Indemnitee). The Indemnitor, in the defense of any such Third-Party Claim, shall not, except with the consent of Indemnitee, which Indemnitee agrees will not be unreasonably withheld, conditioned or delayed with respect to a monetary settlement, judgment or relief, (a) consent to entry of any judgment or enter into any settlement that provides for injunctive or other non-monetary relief against Indemnitee or (b) pursue any course of defense of any such Third-Party Claim subject to indemnification hereunder if Indemnitee shall reasonably and in good faith determine that the conduct of such defense could be expected to adversely affect in any material respect Indemnitee, its direct or indirect owners, the use of the Property or Interest to which the Third-Party Claim (relates. In addition, if the Indemnitor obtains and desires to accept from a “party to any such Third-Party Claim Notice”) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice of the Third-Party Claim; provided, that failure an offer to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Person shall have been actually and materially prejudiced as a result of such failure. Upon receipt of settle the Third-Party Claim Notice from solely for an amount certain, then Indemnitee agrees that if requested by the Indemnified PersonIndemnitor, the Indemnifying Person shall be entitledIndemnitee will, at the Indemnifying Person’s electionits sole expense, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the settlement and related expenses; provided, however, that upon rejection of any settlement and related expenses, the Indemnified Person shall assume control of the defense of such Third-Party Claim and thereafter the liability of the Indemnifying Person Indemnitor’s obligation with respect to such Third-Party Claim shall be limited to not exceed the costs of defense then incurred and the dollar amount or the monetary equivalent of the rejected settlement the Indemnitor proposed to accept immediately prior to such assumption by Indemnitee, it being agreed between Indemnitee and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel Indemnitor that Indemnitee will pay any greater amounts owing and to discuss matters with bear any other impositions in excess of those contemplated in the Indemnifying Person related to proposed settlement arrangement. In the event that the Indemnitor does not accept the defense of any matter as above provided, Indemnitee shall have the full right to defend against any such Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear Claim or demand and shall be solely responsible for entitled to settle or agree to pay in full such Third-Party Claim or demand, in its own costs sole discretion. In any event, the Indemnitor and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person Indemnitee shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse action or claim subject to this Agreement and each agrees to make its records available to the Indemnifying Person.
(c) If other with respect to such defense as reasonably requested and to the Indemnifying Person fails extent doing so does not compromise any claim of privilege or any other defense available to give notice of the assumption it. Acceptance of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt or of the administration of any Third-Party Claim Notice from by the Indemnified PersonIndemnitor shall be without prejudice to the Indemnitor’s right to assert at any time before or after accepting such defense or administration that it is not obligated to provide an indemnity, either in whole or in part, with respect to such Third-Party Claim. In the Indemnifying Person event that the Indemnitor asserts that it is not obligated to provide an indemnity to Indemnitee with respect to a Third-Party Claim, Indemnitee shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue have the right to defend such Third-Party Claim andClaim, in such eventand if the Indemnitor is adjudicated liable for indemnifying Indemnitee, the Indemnifying Person Indemnitor shall indemnify the Indemnified Person reimburse Indemnitee for all reasonable fees and its out-of-pocket expenses in connection therewith (provided it is a defending such Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement all settlements and judgments reasonably incurred as a result of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party Claim.
Appears in 3 contracts
Sources: Purchase and Sale Agreement (DiamondRock Hospitality Co), Purchase and Sale Agreement (DiamondRock Hospitality Co), Purchase and Sale Agreement (DiamondRock Hospitality Co)
Indemnification Procedure for Third Party Claims. (a) In the event that subsequent to the Closing any party Person entitled to indemnification under this Agreement (the an “Indemnified PersonParty”) desires to make a claim against receives notice of the assertion of any other party (the “Indemnifying Person”) in connection with any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim or demand made of the commencement of any action or proceeding by any Person who is not a party to this Agreement against the Indemnified Person or an Affiliate of a party to this Agreement (a “Third-Third Party Claim”) against such Indemnified Party, against which a party to this Agreement is required to provide indemnification under this Agreement (an “Indemnifying Party”), the Indemnified Party shall give written notice together with a statement of any available information describing such Indemnified Person must notify claim in reasonable detail (and attaching a copy of all papers served with respect to such claim) to the Indemnifying Person in writing, of the Third-Party Claim (a “Third-Party Claim Notice”) as promptly as reasonably possible after receipt, but in no event later than within fifteen (15) calendar days after receiptlearning of such claim (or within such shorter time as may be necessary to give the Indemnifying Party a reasonable opportunity to respond to such claim) (the “Claim Notice”). The Indemnifying Party shall have the right, by such upon written notice to the Indemnified Person Party (the “Defense Notice”) within fifteen (15) days after receipt from the Indemnified Party of notice of such claim, which notice by the Third-Indemnifying Party Claimshall specify the counsel it will appoint to defend such claim (“Defense Counsel”), to conduct at its expense the defense against such claim in its own name, or if necessary in the name of the Indemnified Party; provided, however, that failure to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Person shall have been actually and materially prejudiced as a result of such failure. Upon receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve the Defense Counsel, and in the event the Indemnifying Party and the Indemnified Party cannot agree upon such counsel within ten (10) days after the Defense Notice is provided, then the Indemnifying Party shall propose an alternate Defense Counsel, which shall be subject again to the Indemnified Party’s approval. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume control of a Third Party Claim and shall pay the reasonable fees and expenses of counsel retained by the Indemnified Party if (x) the Third Party Claim seeks injunctive or reject other equitable relief or the outcome otherwise could have an adverse effect on the Development Work, (y) the Indemnified Party, in the claim notice to the Indemnifying Party, states that, based on advice of counsel, it believes that its interests in the Third Party Claim is or can reasonably be expected to be adverse to the interests of the Indemnifying Party, or (z) such Indemnifying Party is unable to or does not provide the Indemnified Party with reasonable assurance of its ability to pay the expenses of the defense against such Third Party Claim.
(i) In the event that the Indemnifying Party shall fail to give the Defense Notice within the time period described above, it shall be deemed to have elected not to conduct the defense of the subject claim, and in such event the Indemnified Party shall have the right to conduct such defense in good faith and to compromise and settle the claim without prior consent of the Indemnifying Party and such Indemnifying Party will be liable for all costs, expenses, settlement amounts or other Losses paid or incurred in connection therewith. If the Indemnifying Party is not entitled to assume the defense of a Third Party Claim because of reasons set forth in the last sentence of the preceding paragraph, the Indemnified Party may not settle the Third Party Claim without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, if such settlement would lead to any liability or create any other obligation of the Indemnifying Party.
(ii) In the event that the Indemnifying Party delivers a Defense Notice within the time period described above and related expensesthereby elects to conduct the defense of the subject claim, the Indemnifying Party shall diligently conduct such defense and the Indemnified Party will cooperate with and make available to the Indemnifying Party such assistance and materials as it may reasonably request, all at the expense of the Indemnifying Party, and the Indemnified Party shall have the right at its expense to participate in the defense assisted by counsel of its own choosing.
(iii) The Indemnifying Party may enter into any settlement of any Third Party Claim or cease to defend against such claim; provided, however, that upon rejection the Indemnifying Party may not enter into any settlement of any settlement and related expenses, Third Party Claim or cease to defend against such claim without the prior written consent of the Indemnified Person shall assume control Party if pursuant to or as a result of such settlement or cessation, (A) injunctive or other equitable relief would be imposed against the Indemnified Party, or (B) such settlement or cessation would lead to liability or create any financial or other obligation on the part of the defense of such Third-Indemnified Party Claim and for which the liability of Indemnified Party is not entitled to indemnification hereunder.
(iv) Any final judgment entered or settlement agreed upon in the manner provided herein shall be binding upon the Indemnifying Person Party, and shall conclusively be deemed to be an obligation with respect to such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be is entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide prompt indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party Claim.
Appears in 3 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Kensey Nash Corp), Asset Purchase Agreement (Kensey Nash Corp)
Indemnification Procedure for Third Party Claims. (a) 8.3.1 In the event that any party person or entity entitled to indemnification under this Agreement (an "Indemnified Party") receives notice of the “Indemnified Person”) desires to make a claim against assertion of any other party (claim, issuance of any order or the “Indemnifying Person”) in connection with commencement of any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim action or demand made proceeding by any Person person who is not a party to this Agreement or an Affiliate of a party, including, without limitation, any domestic or foreign court or Governmental Authority (a "Third Party Claim"), against such Indemnified Party, against which a party to this Agreement is required to provide indemnification under this Agreement (an "Indemnifying Party"), the Indemnified Person (Party shall give written notice thereof together with a “Third-Party Claim”), statement of any available information regarding such Indemnified Person must notify claim to the Indemnifying Person in writing, of the Third-Party Claim within thirty (a “Third-Party Claim Notice”30) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receiptlearning of such claim (or within such shorter time as may be necessary, by in the Indemnified Party's reasonable judgment, to give the Indemnifying Party a reasonable opportunity to respond to and defend such Indemnified Person of notice of the Third-Party Claimclaim); provided, however, that the failure to give a Third-Party Claim Notice on a timely basis such notice shall not affect the indemnification provided right to indemnity hereunder except to the extent the Indemnifying Person Party is prejudiced by such delay. The Indemnifying Party shall have been actually and materially prejudiced as a result of such failure. Upon the right, upon written notice to the Indemnified Party (the "Defense Notice") within thirty (30) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s electionParty of notice of such claim, to assume conduct at its expense the defense against such claim in its own name, or participate if necessary in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense name of the Third-Party ClaimIndemnified Party; provided, the Indemnifying Person shall give however, that the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person Party shall have the right to approve the defense counsel selected by the Indemnifying Party, which approval shall not be unreasonably withheld, and in the event the Indemnifying Party and the Indemnified Party cannot agree upon such counsel within ten (10) days after the Defense Notice is provided, then the Indemnifying Party shall propose an alternate defense counsel, who shall be subject again to the Indemnified Party's approval.
8.3.2 In the event that the Indemnifying Party shall fail to timely give the Defense Notice, it shall be deemed to have elected not to conduct the defense of the subject claim, and in such event the Indemnified Party shall have the right to conduct such defense in good faith and to compromise and settle the claim only with the prior consent of the Indemnifying Party (which consent shall not be unreasonably withheld or reject delayed) and the Indemnifying Party will be liable for all costs, expenses, settlement amounts or other Losses paid or incurred in connection therewith.
8.3.3 In the event that the Indemnifying Party does elect to conduct the defense of the subject claim, the Indemnified Party will cooperate with and related expensesmake available to the Indemnifying Party such assistance and materials as may be reasonably requested by it, all at the expense of the Indemnifying Party, and the Indemnified Party shall have the right at its expense to participate in the defense assisted by counsel of its own choosing, provided that the Indemnified Party shall have the right to compromise and settle the claim only with the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed. Without the prior written consent of the Indemnified Party, the Indemnifying Party will not enter into any settlement of any Third Party Claim or cease to defend against such claim, if pursuant to or as a result of such settlement or cessation, (i) injunctive or other equitable relief would be imposed against the Indemnified Party, or (ii) such settlement or cessation would lead to liability or create any financial or other obligation on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder, or (iii) such settlement includes a written admission of guilt. The Indemnifying Party shall not be entitled to control, and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim (A) to the extent that claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party or (B) in a proceeding to which the Indemnifying Party is also a party and the Indemnified Party determines in good faith that joint representation would be inappropriate (and in each case the cost of such defense shall constitute an amount for which the Indemnified Party is entitled to indemnification hereunder); provided, however, that the Indemnifying Party shall have the right to settle such claim only with the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed. If an offer is made to settle a Third Party Claim which all parties to such Third Party Claim (including the Indemnifying Party) are prepared to settle and which offer the Indemnifying Party is permitted to settle under this Section 8.3.2 only upon rejection the prior ------------- written consent of any settlement and related expensesthe Indemnified Party, the Indemnifying Party will give prompt written notice to the Indemnified Party to that effect. If the Indemnified Party fails to consent to such firm offer within (30) calendar days after its receipt of such notice, the Indemnified Person shall assume control of the defense of such Third-Party Claim and the liability of the Indemnifying Person with respect to such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall may continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to contest or defend such Third-Third Party Claim and, in such event, the maximum liability of the Indemnifying Person shall indemnify Party as to such Third Party Claim will not exceed the Indemnified Person for all reasonable fees amount of such settlement offer, plus costs and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses paid or incurred by the Indemnified Person in connection with such Claim; (b) assumes Party through the defense end of such Third-Party Claim; (30) day period.
8.3.4 Any judgment entered, order issued or settlement agreed upon in the manner provided herein shall be binding upon the Indemnifying Party, and (c) takes such other actions as shall conclusively be deemed to be an obligation with respect to which the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability Party is entitled to fulfill its obligations under this Article 10 in connection with such Third-Party Claimprompt indemnification hereunder.
Appears in 3 contracts
Sources: Stock Purchase Agreement (Compass International Services Corp), Stock Purchase Agreement (Compass International Services Corp), Stock Purchase Agreement (Compass International Services Corp)
Indemnification Procedure for Third Party Claims. In the event that subsequent to the Initial Closing any person or entity entitled to indemnification under this Agreement (an "Indemnified Party") asserts a claim for indemnification or receives notice of the assertion of any claim or of the commencement of any action or proceeding by any entity who is not a party to this Agreement or an Affiliate of such a party (including, but not limited to any Governmental Entity) (a "Third Party Claim") against such Indemnified Party, against which a Party is required to provide indemnification under this Agreement (an "Indemnifying Party"), the Indemnified Party shall give written notice together with a statement of any available information regarding such claim to the Indemnifying Party within thirty (30) days after learning of such claim (or within such shorter time as may be necessary to give the Indemnifying Party a reasonable opportunity to respond to such claim). The Indemnifying Party shall have the right, upon written notice to the Indemnified Party (the "Defense Notice") within thirty (30) days after receipt from the Indemnified Party of notice of such claim, (which notice by the Indemnifying Party shall specify the counsel it will appoint to defend such claim ("Defense Counsel")), to conduct at its expense the defense against such claim in its own name, or if necessary in the name of the Indemnified Party; provided, however, that the Indemnified Party shall have the right to approve the Defense Counsel, which approval shall not be unreasonably withheld or delayed.
(a) In the event that any party (the “Indemnified Person”) desires Indemnifying Party shall fail to make a claim against any other party (give such notice, it shall be deemed to have elected not to conduct the “Indemnifying Person”) defense of the subject claim, and in connection with any Losses for which such event the Indemnified Person may seek indemnification hereunder Party shall have the right to conduct such defense in respect good faith and to compromise and settle the claim without prior consent of a claim or demand made by any Person not a party the Indemnifying Party and the Indemnifying Party will be
(b) In the event that the Indemnifying Party does elect to this Agreement against conduct the defense of the subject claim, the Indemnified Person (a “Third-Party Claim”), such Indemnified Person must notify will cooperate with and make available to the Indemnifying Person in writingParty such assistance and materials as may be reasonably requested by it, all at the expense of the Third-Indemnifying Party, and the Indemnified Party shall have the reasonable right at its expense to reasonably participate in the defense assisted by counsel of its own choosing at its own expense, provided that the Indemnified Party shall have the right to compromise and settle the claim only with the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed. Without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed, the Indemnifying Party will not enter into any settlement of any Third Party Claim (a “Third-Party Claim Notice”) as promptly as reasonably possible after receiptor cease to defend against such claim, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice of the Third-Party Claim; provided, that failure if pursuant to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Person shall have been actually and materially prejudiced or as a result of such failure. Upon receipt settlement or cessation (i) injunctive or other equitable relief would be imposed against the Indemnified Party or its Affiliates; or (ii) such settlement or cessation would lead to liability or create any financial or other obligation on the part of the Third-Indemnified Party Claim Notice from or its Affiliates for which the Indemnified PersonParty is not entitled to indemnification hereunder. If a firm offer is made to settle a Third Party Claim, which offer the Indemnifying Party is permitted to accept pursuant to the preceding sentence, and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Person shall be entitled, at Party will give written notice to the Indemnified Party to that effect. If the Indemnified Party notifies the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the settlement and related expenses; provided, however, that upon rejection of any settlement and related expenses, the Indemnified Person shall assume control of the defense of such Third-Party Claim and the liability of the Indemnifying Person with respect to such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior wish such offer to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) be accepted within twenty calendar days after the giving its receipt of such notice, the Indemnified Person shall be permitted Party may elect by such notice to effect the Indemnifying Party to continue to contest or defend such Third Party Claim, and in such event, the maximum liability of the Indemnifying Party as to such Third Party Claim will not exceed the amount of such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees offer, plus costs and expenses paid or incurred by the Indemnified Person in connection with Party through the end of such Claim; (b) assumes twenty day period. Notwithstanding anything to the contrary contained herein, the Indemnifying Party shall not be entitled to control, and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent that claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could have a Material Adverse Effect on the Indemnified Party or its Affiliates (and the cost of such Third-defense shall constitute a Loss for which the Indemnified Party Claim; and is entitled to indemnification hereunder).
(c) takes such other actions as Any judgment entered or settlement agreed upon in the manner provided herein shall be binding upon the Indemnifying Party, and shall conclusively be deemed to be an obligation with respect to which the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability Party is entitled to fulfill its obligations under this Article 10 in connection with such Third-Party Claimprompt indemnification hereunder.
Appears in 3 contracts
Sources: Stock Purchase and Sale Agreement (Dsi Toys Inc), Stock Purchase and Sale Agreement (Mvii LLC), Stock Purchase and Sale Agreement (Mvii LLC)
Indemnification Procedure for Third Party Claims. (a) In the event that any Promptly after receipt by a party entitled to indemnification hereunder (the “Indemnified PersonParty”) desires of written notice of the institution of any legal proceeding, or of any claim or demand, asserted by a third party (a “Third Party Claim”) against the Indemnified Party with respect to make which a claim against any for indemnification is to be made pursuant to Section 8.01 or 8.02 herein, the Indemnified Party shall give written notice to the other party (the “Indemnifying PersonParty”) of such Third Party Claim. The Indemnifying Party shall be entitled to participate in and to assume the defense of such Third Party Claim with counsel reasonably satisfactory to the Indemnified Party, and after notice from the Indemnifying Party to such Indemnified Party of such assumption of defense, and provided that the Indemnifying Party continues to diligently pursue such defense, the Indemnifying Party shall not be liable to such Indemnified Party for any legal or other expenses subsequently incurred by the latter in connection with the defense thereof. Notwithstanding the foregoing, an Indemnified Party shall in all cases be entitled to control its defense, including, without limitation, the selection of separate counsel (at the cost and expense of the Indemnifying Party), of any Losses for which the Indemnified Person Third Party Claim if such claim: (i) may seek indemnification hereunder result in injunctions or other equitable remedies in respect of a claim or demand made by any Person not a party to this Agreement against the Indemnified Person Party which would affect its business or operations in any materially adverse manner; (ii) may result in material liabilities which may not be fully indemnified hereunder; (iii) may have a “Third-significant adverse impact on the business or the financial condition of the Indemnified Party Claim”)(including, such without limitation, a Material Adverse Effect on the tax liabilities, earnings or ongoing business relationships of the Indemnified Person must notify Party) even if the Indemnifying Person Party pays all indemnification amounts in writingfull or (iv) the anticipated defendants in any such situation, of proceeding or action include, without limitation, both the Third-Indemnified Party Claim (a “Third-Party Claim Notice”) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice of the Third-Party Claim; provided, that failure to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent and the Indemnifying Person shall have been actually and materially prejudiced as a result of such failure. Upon receipt of the Third-Party Claim Notice from the Indemnified PersonParty, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person Party shall have reasonably concluded that there may be legal defenses available to it which are different from, additional to or inconsistent with those available to the right to approve or reject the settlement and related expensesIndemnifying Party; provided, however, that upon rejection in no event shall an Indemnifying Party be required to pay fees and expenses under this indemnity for more than one firm of attorneys (in addition to local counsel) in any jurisdiction in any one legal action or group of related legal actions. No Indemnifying Party will enter into any settlement and related expenses, the Indemnified Person shall assume control of the defense of such Third-Party Claim and the liability of the Indemnifying Person with respect to such Third-Third Party Claim shall be limited to without the amount or the monetary equivalent prior written consent of the rejected Indemnified Party unless such settlement (a) requires solely the payment of money damages by the Indemnifying Party and related expenses.
(b) The includes, without limitation, as an unconditional term thereof the release by the claimant or the plaintiff of the Indemnified Person shall retain Party and the right to employ its own counsel and to discuss matters with persons for whom the Indemnifying Person related Indemnified Party is acting or who are acting on behalf of the Indemnified Party from all liability in respect of the proceeding giving rise to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Third Party Claim.
Appears in 3 contracts
Sources: Asset Purchase Agreement (Argo Digital Solutions Inc), Asset Purchase Agreement (rVue Holdings, Inc.), Asset Purchase Agreement (Zvue Corp)
Indemnification Procedure for Third Party Claims. (a) 6.5.1 In the event that subsequent to the Closing, any party Person that is or may be entitled to indemnification under this Agreement (the an “Indemnified PersonParty”) desires to make a claim against receives notice of the assertion of any other party (claim, issuance of any order or the “Indemnifying Person”) in connection with commencement of any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim action or demand made proceeding by any Person who is not a party to this Agreement against the Indemnified Person Party or an Affiliate of a Party, including, without limitation, any domestic or foreign court or Governmental Authority (a “Third-Third Party Claim”), against such Indemnified Person must notify the Party and for which a Party is or may be required to provide indemnification under this Agreement (an “Indemnifying Person in writingParty”), then such Indemnified Party shall give written notice thereof, together with a statement of the Third-any available information regarding such Third Party Claim to the applicable Indemnifying Party within sixty (a “Third-Party Claim Notice”60) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by learning of such Indemnified Person of notice of the Third-Third Party Claim; provided, that failure to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Person shall have been actually and materially prejudiced as a result of such failure. Upon receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the settlement and related expenses; provided, however, that failure to give such written notice within any particular time period shall not adversely affect the Indemnified Party’s right to indemnification except, and to the extent that, the Indemnifying Party can show that the failure to give such notification on a timely basis adversely affected the Indemnifying Party’s ability to defend such Third Party Claim. The Indemnifying Party shall have the right upon rejection written notice to the Indemnified Party (the “Defense Notice”), within thirty (30) days after receipt from the Indemnified Party of notice of such Third Party Claim, to conduct, at its expense, the defense against such Third Party Claim in its own name, or if necessary in the name of the Indemnified Party. Without the prior written consent of the Indemnified Party, the Indemnifying Party will not enter into any settlement of any Third Party Claim or cease to defend against such Third Party Claim, if pursuant to or as a result of such settlement and related expensesor cessation, (a) injunctive or other equitable relief would be imposed against the Indemnified Person shall assume control of the defense of Party, or (b) each claimant or plaintiff in such Third-Third Party Claim and has not given to the liability of the Indemnifying Person Indemnified Party an unconditional release from all Liability with respect to such Third-Third Party Claim.
6.5.2 Notwithstanding anything contained in Section 6.5.1 to the contrary, the Indemnifying Party shall not be entitled to control, and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any Third Party Claim if any of the following conditions are not satisfied:
(a) the Indemnifying Party shall acknowledge in writing that it shall be limited fully responsible for all Losses relating to the amount or the monetary equivalent of the rejected settlement and related expenses.such proceeding;
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with must diligently defend such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.proceeding;
(c) If the Indemnifying Person fails to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from must furnish the Indemnified Person, Party with evidence that the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance financial resources of the Indemnifying PersonParty (or the funds available in the Escrow Account with respect to claims against the Escrow Account), in the Indemnified Party’s ability reasonable judgment, are and will be sufficient (when considering Losses in respect of all other outstanding claims) to fulfill its obligations satisfy any Losses relating to such proceeding;
(d) such proceeding shall not involve criminal actions or allegations of criminal conduct by the Indemnifying Party, and shall not involve claims for specific performance or other equitable relief; and
(e) there does not exist, in the Indemnified Party’s good faith judgment, based on the advice of outside legal counsel, a conflict of interest which, under this Article 10 applicable principles of legal ethics, could reasonably be expected to prohibit a single legal counsel from representing both the Indemnified Party and the Indemnifying Party in connection with such Third-Party Claimproceeding.
Appears in 3 contracts
Sources: Asset Purchase Agreement (Patriot National, Inc.), Asset Purchase Agreement (Patriot National, Inc.), Asset Purchase Agreement (Patriot National, Inc.)
Indemnification Procedure for Third Party Claims. (a) In the event that any claim or demand, or other circumstance or state of facts which could give rise to any claim or demand, for which an Indemnitor may be liable to an Indemnitee hereunder is asserted or sought to be collected by a third party (the “Indemnified Person”) desires to make a claim against any other party (the “Indemnifying Person”) in connection with any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim or demand made by any Person not a party to this Agreement against the Indemnified Person (a “Third-Third Party Claim”), such Indemnified Person must the Indemnitee shall as soon as practicable notify the Indemnifying Person Indemnitor in writing, writing of the Third-such Third Party Claim (a “Third-Party Claim NoticeNotice of Claim”) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice of the Third-Party Claim); provided, however, that a failure by an Indemnitee to give a Third-Party Claim Notice on a timely basis provide notice as soon as practicable shall not affect the indemnification provided hereunder except to rights or obligations of such Indemnitee other than if the extent the Indemnifying Person Indemnitor shall have been actually and materially prejudiced as a result of such failure. Upon receipt The Notice of Claim shall (a) state that the Indemnitee has paid or properly accrued Losses or anticipates that it will incur liability for Losses for which such Indemnitee is entitled to indemnification pursuant to this Agreement, and (b) specify in reasonable detail each individual item of Loss included in the amount so stated, the date such item was paid or properly accrued, the basis for any anticipated Liability and the nature of the Third-Party Claim Notice from misrepresentation, breach of warranty, breach of covenant or claim to which each such item is related and the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense computation of the Third-Party Claim, amount to which such Indemnitee claims to be entitled hereunder. The Indemnitee shall enclose with the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the settlement and related expenses; provided, however, that upon rejection Notice of any settlement and related expenses, the Indemnified Person shall assume control Claim a copy of the defense of such Third-Party Claim and the liability of the Indemnifying Person all papers served with respect to such Third-Third Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement Claim, if any, and related expensesany other documents evidencing such Third Party Claim.
(b) The Indemnified Person Indemnitor shall retain have the right right, but not the obligation to employ its own counsel and to discuss matters with the Indemnifying Person related to assume the defense or prosecution of such Third Party Claim and any Thirdlitigation resulting therefrom with counsel of its choice and at its sole cost and expense (a “Third Party Defense”). If the Indemnitor assumes the Third Party Defense in accordance herewith, (i) the Indemnitee may retain separate co-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear counsel at its sole cost and shall be solely responsible for its own costs expense and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects participate in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails to give notice of the assumption of the defense of any Third-Third Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of but the Third-Party Claim Notice from Indemnitor shall control the Indemnified Personinvestigation, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees defense and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party Claim.thereof,
Appears in 2 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement
Indemnification Procedure for Third Party Claims. (ai) In the event that subsequent to the Closing any party Person entitled to indemnification under this Agreement (the an “Indemnified PersonParty”) desires to make asserts a claim against for indemnification or receives notice of the assertion of any other party (the “Indemnifying Person”) in connection with any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim or demand made of the commencement of any Action by any Person who is not a party to this Agreement against the Indemnified Person or an Affiliate of a party to this Agreement (including any Governmental Body) (a “Third-Third Party Claim”) against such Indemnified Party, against which a party to this Agreement is required to provide indemnification under this Agreement (an “Indemnifying Party”), the Indemnified Party shall give written notice of such Indemnified Person must notify claim to the Indemnifying Person in writing, Party within thirty (30) days after learning of such claim (the Third-Party Claim (a “Third-Party Claim Notice”). The Indemnifying Party shall have the right, upon written notice to the Indemnified Party (the “Defense Notice”) as promptly as reasonably possible after receipt, but in no event later than fifteen within thirty (1530) calendar days after receipt, by such receipt from the Indemnified Person of notice Party of the Third-Claim Notice, which Defense Notice shall specify the counsel the Indemnifying Party Claimwill appoint to defend such claim (“Defense Counsel”), to conduct at its expense the defense against such claim in its own name, or, if necessary, in the name of the Indemnified Party; provided, however, that failure to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Person shall have been actually and materially prejudiced as a result of such failure. Upon receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve the Defense Counsel, and in the event the Indemnifying Party and the Indemnified Party cannot agree upon such counsel within ten (10) days after the Defense Notice is provided, then the Indemnifying Party shall propose an alternate Defense Counsel, which shall be subject again to the Indemnified Party’s approval (and such process shall be repeated until the Indemnified Party shall have approved the Defense Counsel specified by the Indemnifying Party.) If the Indemnifying Party delivers a Defense Notice, the delivery of such Defense Notice shall constitute acceptance of responsibility for such claim or reject action and the Indemnifying Party shall be fully responsible for all liabilities arising out of or relating to such claim or action including the costs of the defense thereof. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume control of a Third Party Claim and shall pay the reasonable fees and expenses of counsel retained by the Indemnified Party if (w) the Third Party Claim seeks injunctive or other equitable relief, (x) the Indemnified Party, in the claim notice to the Indemnifying Party, states that, based on advice of counsel, it believes that its interests in the Third Party Claim is or can reasonably be expected to be adverse to the interests of the Indemnifying Party, or (y) such Indemnifying Party is unable to or does not provide the Indemnified Party with reasonable assurance of its ability to pay the expenses of the defense against such Third Party Claim.
(ii) In the event that the Indemnifying Party shall fail to give the Defense Notice within the time period described above, it shall be deemed to have elected not to conduct the defense of the subject claim, and in such event the Indemnified Party shall have the right to conduct such defense in good faith and to compromise and settle the claim in good faith subject to the consent of the Indemnifying Party (which consent will not be unreasonably withheld) and such Indemnifying Party will be liable for all costs, expenses, settlement amounts or other Losses actually paid or incurred in connection therewith. If the Indemnifying Party is not entitled to assume the defense of a Third Party Claim because of reasons set forth in the last sentence of the preceding paragraph, the Indemnified Party may not settle the Third Party Claim without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed, if such settlement would lead to any liability or create any other obligation of the Indemnifying Party.
(iii) In the event that the Indemnifying Party does deliver a Defense Notice within the time period described above and related expensesthereby elects to conduct the defense of the subject claim, the Indemnifying Party shall diligently conduct such defense and the Indemnified Party will cooperate with and make available to the Indemnifying Party such assistance and materials as it may reasonably request, all at the expense of the Indemnifying Party, and the Indemnified Party shall have the right at its expense to participate in the defense assisted by counsel of its own choosing.
(iv) The Indemnifying Party may enter into any settlement of any Third Party Claim; provided, however, that upon rejection of any settlement and related expenses, the Indemnified Person shall assume control of the defense of such Third-Party Claim and the liability of the Indemnifying Person with respect to such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period may not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating enter into any settlement of such Third-any Third Party Claim, Claim without the prior written consent of the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time Party if pursuant to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving or as a result of such noticesettlement, (A) injunctive or other equitable relief would be imposed against the Indemnified Person shall be permitted to effect Party, or (B) such settlement unless would or could reasonably be expected to lead to any liability or create any financial or other obligation on the Indemnifying Person (a) reimburses part of the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party ClaimParty.
Appears in 2 contracts
Sources: Equity Purchase Agreement, Equity Purchase Agreement (Dolan Media CO)
Indemnification Procedure for Third Party Claims. (a) In the event that any party (the “Indemnified Person”) desires to make If a claim against any other party (the “Indemnifying Person”) in connection with any Losses for which the Indemnified claim, action, suit or proceeding by a Person may seek indemnification hereunder in respect of a claim or demand made by any Person who is not a party to this Agreement against the Indemnified Person Party or an Affiliate thereof (a “Third-Third Party Claim”) is made against any Person entitled to indemnification pursuant to Section 6.2 hereof (an “Indemnified Party”), and if such Person intends to seek indemnity with respect thereto under this Article 6, such Indemnified Person must notify Party shall promptly give a Notice of Claim to the Indemnifying Person in writing, of the Third-Party Claim (a “Third-Party Claim Notice”) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by obligated to indemnify such Indemnified Person of notice of Party (such notified Party, the Third-Party Claim“Responsible Party”); provided, provided that the failure to give a Third-Party such Notice of Claim Notice on a timely basis shall not affect relieve the indemnification provided hereunder Responsible Party of its obligations hereunder, except to the extent that the Indemnifying Person shall have been Responsible Party is actually and materially prejudiced as a result of such failurethereby. Upon receipt of the Third-The Responsible Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right right, but not the obligation, within thirty (30) days after receipt of such Notice of Claim to approve or reject assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Responsible Party, of the settlement and related expensesor defense thereof; provided, however, that upon rejection such Responsible Party will not be entitled to assume (or, in the case of clause (iii) below, will be entitled to assume jointly with the Indemnified Party) the settlement or defense of any settlement and related expensessuch Third Party Claim if: (i) such Responsible Party shall not have acknowledged in writing its obligation to indemnify the Indemnified Party in respect of such Third Party Claim pursuant to this Agreement; (ii) such claim, based on the remedy being sought, could result in criminal Liability of, or equitable remedies against, the Indemnified Person shall assume control Party; (iii) the Indemnified Party reasonably believes (based upon the advice of its counsel) that the interests of the defense of such Third-Responsible Party Claim and the liability of the Indemnifying Person Indemnified Party with respect to such Third-claim are in actual or potential conflict with one another, and as a result, the Responsible Party Claim could not adequately represent the interests of the Indemnified Party in such claim; or (iv) the claim is subject to the Cap, if applicable, and asserts an amount of Losses which, when taken together with all amounts paid to the Indemnified Party for resolved indemnification claims that are subject to the Cap and the maximum aggregate amount of Losses alleged in all other unresolved indemnification claims that are subject to the Cap, exceeds the Cap; provided, further that the Indemnified Party shall cooperate with the Responsible Party in connection therewith and the Responsible Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party (it being understood that the fees and expenses of such counsel shall be limited to the amount or the monetary equivalent of the rejected settlement and related expensesborne by such Buyer Indemnitee).
(b) The Indemnified Person shall retain During the right to employ its own counsel and to discuss matters with thirty (30) day period described in Section 6.3(a) (or until the Indemnifying Person related to Responsible Party delivers a written notice assuming the defense of any Third-the applicable Third Party ClaimClaim in accordance with Section 6.3(a), the Indemnified Party may (at the Indemnified Party’s expense) make such filings, including motions for continuance (and answers if a motion for continuance has not been granted), as may be necessary to preserve the Parties’ positions and rights with respect to such claim. In the event, however, that the Responsible Party declines or fails to assume the defense of which has been assumed by the Indemnifying Person pursuant Third Party Claim on the terms provided in Section 6.3(a), or to Section 10.3(a) of this Agreement, but employ counsel reasonably satisfactory to the Indemnified Person Party, in either case, within such thirty (30) day period, or if the Responsible Party is not entitled to assume the defense of the Third Party Claim in accordance with Section 6.3(a), then the Responsible Party shall bear pay the reasonable and shall be solely responsible documented fees and disbursements of counsel for its own costs and expenses in connection with such participationthe Indemnified Party as incurred; provided, however, that, subject that the Responsible Party shall not be required to Section 10.3(a) above, pay the fees and disbursements of more than one counsel for all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person indemnified parties in all respects any jurisdiction in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Personsingle Action.
(c) If Notwithstanding anything to the Indemnifying Person fails to give notice contrary set forth in Section 6.3(a) or (b), (i) the Responsible Party shall not, without the prior written consent of the assumption Indemnified Party (such consent not to be unreasonably delayed or withheld), consent to the entry of any judgment or enter into any settlement or compromise with respect to any Third Party Claim unless the judgment or proposed settlement or compromise (A) involves only the payment of money damages that is payable in full by the Responsible Party and does not impose an injunction, other equitable relief or term upon the Indemnified Party that in any manner affects, restrains or interferes with the business of the defense Indemnified Party and any of such Indemnified Party’s Affiliates, (B) includes an unconditional release of the Indemnified Party and its or his Affiliates, Representatives, equity holders, members, managers and partners and their respective successors and assigns from all Liability arising out of or related to such claim and (C) does not contain any admission or statement suggesting any wrongdoing or Liability on behalf of the Indemnified Party, and (ii) the Indemnified Party shall not, without the prior written consent of the Responsible Party (such consent not to be unreasonably delayed or withheld), consent to the entry of any Third-judgment or enter into any settlement or compromise with respect to any Third Party Claim within if the Responsible Party shall have any Liability as a reasonable time period not to exceed forty-five result thereof.
(45d) days after receipt All of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person Parties shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel reasonably cooperate in the defense or prosecution of any Third-Third Party Claim the defense in respect of which it does not assume. Prior to effectuating any settlement indemnity may be sought hereunder and each of Buyer and the Company (or a duly authorized Representative of such Third-Party Claim, the Indemnified Person Party) shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such noticerecords, the Indemnified Person shall information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person reasonably requested in connection with such Claimtherewith; (b) assumes the defense of such Third-provided, however, that in no event shall a Party Claim; and (c) takes such be required to make available to any other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party Claimany Privileged Information.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Zayo Group LLC)
Indemnification Procedure for Third Party Claims. (a) In the event that any Promptly after receipt by an Indemnified Party of notice by a third party (including any Governmental Entity) of any complaint or the “commencement of any audit, investigation, action or proceeding with respect to which such Indemnified Person”) desires Party may be entitled to make a claim against receive payment from the other Party for any other party Damages, such Indemnified Party will notify Purchaser or Seller, as the case may be (the “Indemnifying Person”) in connection with any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim or demand made by any Person not a party to this Agreement against the Indemnified Person (a “Third-Party ClaimParty”), promptly following the Indemnified Party’s receipt of such Indemnified Person must notify the Indemnifying Person in writing, of the Third-Party Claim (a “Third-Party Claim Notice”) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person complaint or of notice of the Third-Party Claim; provided, that failure to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Person shall have been actually and materially prejudiced as a result commencement of such failure. Upon receipt of the Third-Party Claim Notice from the Indemnified Personaudit, the Indemnifying Person shall be entitledinvestigation, at the Indemnifying Person’s election, to assume action or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the settlement and related expensesproceeding; provided, however, that upon rejection the failure to so notify the Indemnifying Party will relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in the forfeiture by the Indemnifying Party of rights and defenses otherwise available to the Indemnifying Party with respect to such claim. The Indemnifying Party will have the right, within ten (10) days after written notice delivered to the Indemnified Party, to assume full responsibility for any settlement Damages (as the case may be) resulting from such audit, investigation, action or proceeding, to assume the defense of such audit, investigation, action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party and related expensesthe payment of the fees and disbursements of such counsel. If, however, the Indemnifying Party declines or fails to assume the defense of the audit, investigation, action or proceeding on the terms provided above or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such ten (10)-day period, then the Indemnifying Party will pay the reasonable fees and disbursements of counsel for the Indemnified Party as incurred. In any audit, investigation, action or proceeding for which the Indemnifying Party has assumed the defense, the Indemnified Person shall assume control Party will have the right to participate in such matter and to retain its own counsel at the Indemnified Party’s own expense. The Indemnifying Party will at all times use reasonable efforts to keep the Indemnified Party reasonably apprised of the status of the defense of such Third-Party Claim and any matter the liability defense of which the Indemnifying Person Party has assumed and to cooperate in good faith with the Indemnified Party with respect to such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Personmatter.
(c) If the Indemnifying Person fails to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party Claim.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Wireless Facilities Inc), Asset Purchase Agreement (LCC International Inc)
Indemnification Procedure for Third Party Claims. (a) In the event that of the initiation of any party (legal proceeding against an Indemnitee by a third party, the “Indemnified Person”) desires Indemnitor will have the absolute right after the receipt of notice, at its option and at its own expense, to make a claim against any other party (the “Indemnifying Person”) in connection be represented by counsel of its choice, and to defend against, negotiate, settle or otherwise deal with any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim proceeding, claim, or demand made by which relates to any Person not a party to this Agreement loss, liability or damage indemnified against the Indemnified Person (a “Third-Party Claim”), such Indemnified Person must notify the Indemnifying Person in writing, of the Third-Party Claim (a “Third-Party Claim Notice”) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice of the Third-Party Claim; provided, that failure to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Person shall have been actually and materially prejudiced as a result of such failure. Upon receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the settlement and related expenseshereunder; provided, however, that upon rejection the Indemnitee may participate in any such proceeding with counsel of its choice and at its expense. The parties will cooperate fully with each other in connection with the defense, negotiation or settlement of any settlement such legal proceeding, claim or demand. To the extent the Indemnitor elects not to defend such proceeding, claim or demand, and related expensesthe Indemnitee defends against or otherwise deals with any such proceeding, claim or demand, the Indemnified Person shall assume Indemnitee may retain counsel, at the expense of the Indemnitor, and control of the defense of such Third-Party Claim proceeding. Neither the Indemnitor nor the Indemnitee may settle any such proceeding without the consent of the other party, such consent not to be unreasonably withheld. After any final judgment or award has been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the liability time in which to appeal therefrom has expired, or a settlement has been consummated, or the Indemnitee and the Indemnitor have arrived at a mutually binding agreement with respect to each separate matter alleged to be indemnified by the Indemnitor hereunder, the Indemnitee will forward to the Indemnitor notice of the Indemnifying Person any sums due and owing by it with respect to such Third-Party Claim shall be limited matter and the Indemnitor will pay all of the sums so owing to the amount Indemnitee by wire transfer, certified or the monetary equivalent of the rejected settlement and related expenses.
bank cashier's check within thirty (b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (1530) days after the giving date of such notice. Notwithstanding the foregoing, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms provisions of this Article 10 for Section 8.5 will govern all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party Claimindemnification claims made thereunder.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Aetrium Inc), Asset Purchase Agreement (Aetrium Inc)
Indemnification Procedure for Third Party Claims. (a) In the event that any party (the “Indemnified Person”) desires to make a claim against any other party (the “Indemnifying Person”) in connection with any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim or demand made by any Person not a party to this Agreement against the Indemnified Person (a “Third-Party Claim”), such Indemnified Person must notify the Indemnifying Person in writing, of the Third-Party Claim (a “Third-Party Claim Notice”) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice of the Third-Party Claim; provided, that failure to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Person shall have been actually and materially prejudiced as a result of such failure. Upon receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the settlement and related expenses; provided, however, that upon rejection of any settlement and related expenses, the Indemnified Person shall assume control of the defense of such Third-Party Claim and the liability of the Indemnifying Person with respect to such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreementabove, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party Claim.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Alliance MMA, Inc.), Asset Purchase Agreement (Alliance MMA, Inc.)
Indemnification Procedure for Third Party Claims. (aA) In the event that any Promptly after receipt by an indemnified party (the “Indemnified PersonParty”) desires to make of notice from any third party of a claim or demand in respect of which indemnity may be sought under Section 12.2(A) or (B) which is asserted against or sought to be collected from the Indemnified Party, including the commencement of any other Action against it (“Third Party Claim”), the Indemnified Party shall, if a claim is to be made against an indemnifying party (the “Indemnifying PersonParty”) in connection with any Losses for which under such Section 12.2(A) or (B), as applicable, give notice to the Indemnified Person may seek indemnification hereunder in respect Indemnifying Party of a claim or demand made by any Person not a party to this Agreement against the Indemnified Person (a “Third-Third Party Claim”), such Indemnified Person must but the failure to notify the Indemnifying Person in writingParty will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party, of the Third-Party Claim (a “Third-Party Claim Notice”) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice of the Third-Party Claim; provided, that failure to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent that the Indemnifying Person shall have been actually and materially prejudiced as a result Party demonstrates that the defense of such failure. Upon receipt of the Third-Third Party Claim Notice from is prejudiced by the Indemnifying Party’s failure to receive such notice.
(B) If any Third Party Claim referred to in Section 12.3(A) is brought against an Indemnified PersonParty and it gives written notice to the Indemnifying Party of such claim, the Indemnifying Person Party will be entitled to participate in any Action underlying the claim and, to the extent that it wishes (unless the Indemnifying Party is also a party to such Action and the Indemnified Party determines in good faith that joint representation would be inappropriate, in which event such Indemnified Party shall be entitledhave the right to retain, at the Indemnifying PersonParty’s electionexpense, one separate counsel, reasonably satisfactory to the Indemnifying Party, to defend such claim on behalf of such Indemnified Party), assume or participate in the defense of any Third-such claim with counsel reasonably satisfactory to the Indemnified Party Claim at the cost of Indemnifying Person. In any case in which and, after notice from the Indemnifying Person Party to the Indemnified Party of its election to assume the defense of such Action, except in the circumstances described in the parenthetical above, the Indemnifying Party will not, as long as it diligently conducts such defense, be liable to the Indemnified Party under this Section 12.3(B) for any fees of other counsel or any other expenses with respect to the defense of such claim, in each case subsequently incurred by the Indemnified Party in connection with the defense of such claim, other than reasonable costs of investigation. If the Indemnifying Party assumes the defense of the Third-Third Party Claim: (i) no compromise or settlement of such claim may be effected by the Indemnifying Party without the Indemnified Party’s written consent unless (except in respect of any claim for Taxes, where the Indemnified Party’s consent shall be required in all events) (a) there is no finding or admission of any violation of law or order or any violation of the rights of any Person, (b) such settlement or compromise releases the Indemnified Party in connection with such Third Party Claim, (c) the sole relief provided is monetary damages that are paid in full by the Indemnifying Person shall give Party or (d) such settlement or compromise does not require any payment or other action by, or limitation on, the Indemnified Person ten Party; (10ii) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person Party will have no liability with respect to any compromise or settlement of such claim effected without its written consent and (iii) the Indemnified Party shall have the right to approve or reject the settlement participate in such defense and related expenses; providedto employ counsel, howeverin each case, that upon rejection at its own expense. Subject to this Section 12.3(B), if notice is given to an Indemnifying Party of any settlement Third Party Claim and related expensesthe Indemnifying Party does not, within ten (10) days after the Indemnified Person shall Party’s notice is given, give notice to the Indemnified Party of its election to assume control of the defense of such Third-Action, the Indemnifying Party Claim will be bound by any determination made in such Action or any compromise or settlement effected by the Indemnified Party, and the liability of the Indemnifying Person with respect to such Third-Party Claim shall will be limited to the amount or the monetary equivalent of the rejected settlement and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses any losses incurred in connection with such participation; providedthe defense, howevercompromise, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be settlement or final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement determination of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party ClaimAction.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Viewcast Com Inc), Asset Purchase Agreement (Viewcast Com Inc)
Indemnification Procedure for Third Party Claims. In the event that subsequent to the Closing any Person entitled to indemnification under this Agreement (an “Indemnified Party”) asserts a claim for indemnification or receives notice of the assertion of any claim or of the commencement of any action or proceeding by any entity that is not a party to this Agreement or an Affiliate of a party to this Agreement (including, but not limited to any domestic or foreign court or Governmental Authority, federal, state or local) (a “Third Party Claim”) against such Indemnified Party, against which a party to this Agreement is required to provide indemnification under this Agreement (an “Indemnifying Party”), the Indemnified Party shall give written notice together with a statement of any available information regarding such claim to the Indemnifying Party within sixty (60) days after learning of such claim (or within such shorter time as may be necessary to give the Indemnifying Party a reasonable opportunity to respond to such claim). The Indemnifying Party shall have the right, upon written notice to the Indemnified Party (the “Defense Notice”) within thirty (30) days after receipt from the Indemnified Party of notice of such claim, which notice by the Indemnifying Party shall specify the counsel it will appoint to defend such claim (“Defense Counsel”), to conduct at its expense the defense against such claim in its own name, or if necessary in the name of the Indemnified Party; provided, however, that the Indemnified Party shall have the right to approve the Defense Counsel, which approval shall not be unreasonably withheld, and in the event the Indemnifying Party and the Indemnified Party cannot agree upon such counsel within ten (10) days after the Defense Notice is provided, then the Indemnifying Party shall propose an alternate Defense Counsel, which shall be subject again to the Indemnified Party’s approval. If the parties still fail to agree on Defense Counsel, then, at such time, they shall mutually agree in good faith on a procedure to determine the Defense Counsel. The delivery of a Defense Notice shall not constitute an admission with respect to the claim for indemnification.
(a) In the event that any party (the “Indemnifying Party shall fail to give the Defense Notice, it shall be deemed to have elected not to conduct the defense of the subject claim, and in such event the Indemnified Person”) desires Party shall have the right to make a conduct such defense in good faith and to compromise and settle the claim against any without prior consent of the Indemnifying Party and the Indemnifying Party will be liable for all costs, expenses, settlement amounts or other party (the “Indemnifying Person”) Losses paid or incurred in connection therewith.
(b) In the event that the Indemnifying Party does deliver a Defense Notice and thereby elects to conduct the defense of the subject claim, the Indemnified Party will cooperate with and make available to the Indemnifying Party such assistance and materials as it may reasonably request, all at the expense of the Indemnifying Party, and the Indemnified Party shall have the right at its expense to participate in the defense assisted by counsel of its own choosing; provided that the Indemnified Party shall have the right to compromise and settle the claim only with the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed.
(c) Without the prior written consent of the Indemnified Party, the Indemnifying Party will not enter into any Losses settlement of any Third Party Claim or cease to defend against such claim, if pursuant to or as a result of such settlement or cessation, (i) injunctive or other equitable relief would be imposed against the Indemnified Party, or (ii) such settlement or cessation would lead to liability or create any financial or other obligation on the part of the Indemnified Party for which the Indemnified Person may seek Party is not entitled to indemnification hereunder in respect hereunder.
(d) The Indemnifying Party shall not be entitled to control, and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of a any claim to the extent that claim seeks an order, injunction or demand made by any Person not a party to this Agreement other equitable relief against the Indemnified Person Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party (and the cost of such defense shall constitute an amount for which the Indemnified Party is entitled to indemnification hereunder).
(e) If a “Third-firm decision is made to settle a Third Party Claim”), such Indemnified Person must notify which offer the Indemnifying Person in writingParty is permitted to settle under this Section 12.3, of and the Third-Indemnifying Party Claim (a “Third-desires to accept and agree to such offer, the Indemnifying Party Claim Notice”) as promptly as reasonably possible after receipt, but in no event later than will give written notice to the Indemnified Party to that effect. If the Indemnified Party fails to consent to such firm offer within fifteen (15) calendar days after receipt, by such Indemnified Person of notice of the Third-Party Claim; provided, that failure to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Person shall have been actually and materially prejudiced as a result its receipt of such failure. Upon receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the settlement and related expenses; provided, however, that upon rejection of any settlement and related expensesnotice, the Indemnified Person shall assume control of the defense of such Third-Party Claim and the liability of the Indemnifying Person with respect to such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall may continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to contest or defend such Third-Third Party Claim and, in such event, the maximum liability of the Indemnifying Person shall indemnify Party as to such Third Party Claim will not exceed the amount of such settlement offer, plus costs and expenses paid or incurred by the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which through the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement end of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after day period.
(f) Any judgment entered or settlement agreed upon in the giving of such noticemanner provided herein shall be binding upon the Indemnifying Party, and shall conclusively be deemed to be an obligation with respect to which the Indemnified Person shall be permitted Party is entitled to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party Claimprompt indemnification hereunder.
Appears in 2 contracts
Sources: Asset Contribution and Exchange Agreement (Novamed Inc), Purchase Agreement (Novamed Inc)
Indemnification Procedure for Third Party Claims. In the event that subsequent to the Closing any person or entity entitled to indemnification under this Agreement (an "Indemnified Party") asserts a claim for indemnification or receives notice of the assertion of any claim or of the commencement of any action or proceeding by any entity who is not a party to this Agreement or an affiliate of a party to this Agreement (including, but not limited to any domestic or foreign court or Governmental Body, federal, state or local) (a "Third Party Claim") against such Indemnified Party, against which a party to this Agreement is required to provide indemnification under this Agreement (an "Indemnifying Party"), the Indemnified Party shall give written notice together with a statement of any available information (other than privileged information) regarding such claim to the Indemnifying Party within thirty (30) business days after learning of such claim (or within such shorter time as may be necessary to give the Indemnifying Party a reasonable opportunity to respond to such claim). The Indemnifying Party shall have the right, upon written notice to the Indemnified Party (the "Defense Notice") within fifteen days (15) after receipt from the Indemnified Party of notice of such claim, which notice by the Indemnifying Party shall specify the counsel it will appoint to defend such claim ("Defense Counsel"), to conduct at its expense the defense against such claim in its own name, or if necessary in the name of the Indemnified Party; provided, however, that the Indemnified Party shall have the right to approve the Defense Counsel, which approval shall not be unreasonably withheld or delayed, and in the event the Indemnifying Party and the Indemnified Party cannot agree upon such counsel within ten (10) days after the Defense Notice is provided, then the Indemnifying Party shall propose an alternate Defense Counsel, which shall be subject again to the Indemnified Party's approval which approval shall not be unreasonably withheld or delayed. If the parties still fail to agree on the Defense Counsel, then, at such time, they shall mutually agree in good faith on a procedure to determine the Defense Counsel.
(a) In the event that any party (the “Indemnifying Party shall fail to give the Defense Notice within said 15 day period, it shall be deemed to have elected not to conduct the defense of the subject claim, and in such event the Indemnified Person”) desires Party shall have the right to make a conduct the defense in good faith and to compromise and settle the claim against any in good faith without prior consent of the Indemnifying Party and the Indemnifying Party will be liable for all reasonable costs, expenses, settlement amounts or other party (the “Indemnifying Person”) Losses paid or incurred in connection therewith.
(b) In the event that the Indemnifying Party does deliver a Defense Notice and thereby elects to conduct the defense of the subject claim, the Indemnifying Party shall be entitled to have the exclusive control over said defense settlement of the subject claim and the Indemnified Party will cooperate with and make available to the Indemnifying Party such assistance and materials as it may reasonably request, all at the expense of the Indemnifying Party, and the Indemnified Party shall have the right at its expense to participate in the defense assisted by counsel of its own choosing. In such an event, the Indemnifying Party will not settle the subject claim without the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld or delayed.
(c) Without the prior written consent of the Indemnified Party, the Indemnifying Party will not enter into any Losses settlement of any Third Party Claim or cease to defend against such claim, if pursuant to or as a result of such settlement or cessation, (i) injunctive relief or specific performance would be imposed against the Indemnified Party, or (ii) such settlement or cessation would lead to liability or create any financial or other obligation on the part of the Indemnified Party for which the Indemnified Person Party is not entitled to indemnification hereunder.
(d) If an Indemnified Party refuses to consent to a bona fide offer of settlement which provides for a full release of the Parent, Buyer and its affiliates and solely for a monetary payment which the Indemnifying Party wishes to accept, the Indemnified Party may seek indemnification hereunder in respect continue to pursue such matter, free of any participation by the Indemnifying Party, at the sole expense of the Indemnified Party. In such event, the obligation of the Indemnifying Party shall be limited to the amount of the offer of settlement which the Indemnified Party refused to accept plus the costs and expenses of the Indemnified Party incurred prior to the date the Indemnifying Party notified the Indemnified Party of the offer of settlement.
(e) Notwithstanding paragraph (b) above, the Indemnifying Party shall not be entitled to control, but may participate in, and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim (i) that seeks a claim temporary restraining order, a preliminary or demand made by any Person not a party to this Agreement permanent injunction or specific performance against the Indemnified Person Party, (ii) to the extent such claim involves criminal allegations against the Indemnified Party, (iii) that if unsuccessful, would set a “Third-precedent that would materially interfere with, or have a material adverse effect on, the business or financial condition of the Indemnified Party, or (iv) to the extent such claim imposes liability on the part of the Indemnified Party Claim”for which the Indemnified Party is not entitled to indemnification hereunder (including, without limitation, a liability which may exceed the Cap). In such an event, such Indemnified Person must notify the Indemnifying Person in writing, Party will still have all of its obligations hereunder provided that the Indemnified Party will not settle the subject claim without the prior written consent of the Third-Indemnifying Party, which consent will not be unreasonably withheld.
(f) Any final judgment entered or settlement agreed upon in the manner provided herein shall be binding upon the Indemnifying Party, and shall conclusively be deemed to be an obligation with respect to which the Indemnified Party Claim is entitled to prompt indemnification hereunder.
(a “Third-g) A failure by an Indemnified Party Claim Notice”) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice of the Third-Party Claim; provided, that failure to give a Third-Party Claim Notice on a timely basis shall timely, complete or accurate notice as provided in this Section 6.4 will not affect the indemnification provided rights or obligations of any party hereunder except and only to the extent the Indemnifying Person shall have been actually and materially prejudiced that, as a result of such failure. Upon receipt , any party entitled to receive such notice was deprived of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the its right to approve recover any payment under its applicable insurance coverage or reject the settlement was otherwise directly and related expenses; provided, however, that upon rejection of any settlement and related expenses, the Indemnified Person shall assume control of the defense materially damaged as a result of such Third-Party Claim and the liability of the Indemnifying Person with respect to such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails failure to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such timely notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party Claim.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Leap Group Inc), Asset Purchase Agreement (Leap Group Inc)
Indemnification Procedure for Third Party Claims. (a) 6.5.1 In the event that subsequent to the Closing, any party Person that is or may be entitled to indemnification under this Agreement (the an “Indemnified PersonParty”) desires to make a claim against receives notice of the assertion of any other party (claim, issuance of any order or the “Indemnifying Person”) in connection with commencement of any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim action or demand made proceeding by any Person who is not a party to this Agreement against the Indemnified Person Party or an Affiliate of a Party, including, without limitation, any domestic or foreign court or Governmental Authority (a “Third-Third Party Claim”), against such Indemnified Person must notify the Party and for which a Party is or may be required to provide indemnification under this Agreement (an “Indemnifying Person in writingParty”), then such Indemnified Party shall give written notice thereof, together with a statement of the Third-any available information regarding such Third Party Claim to such Indemnifying Party within sixty (a “Third-Party Claim Notice”60) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by learning of such Indemnified Person of notice of the Third-Third Party Claim; provided, that failure to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Person shall have been actually and materially prejudiced as a result of such failure. Upon receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the settlement and related expenses; provided, however, that failure to give such written notice within any particular time period shall not adversely affect the Indemnified Party’s right to indemnification except, and to the extent that, the Indemnifying Party can show that the failure to give such notification on a timely basis adversely affected the Indemnifying Party’s ability to defend such Third Party Claim. The Indemnifying Party shall have the right upon rejection written notice to the Indemnified Party (the “Defense Notice”), within thirty (30) days after receipt from the Indemnified Party of notice of such Third Party Claim, to conduct, at its expense, the defense against and settlement of such Third Party Claim in its own name, or if necessary in the name of the Indemnified Party. Without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld, delayed or conditioned), the Indemnifying Party will not enter into any settlement of any Third Party Claim or cease to defend against such Third Party Claim, if pursuant to or as a result of such settlement and related expensesor cessation, (a) injunctive or other equitable relief would be imposed against the Indemnified Person shall assume control of the defense of Party, or (b) each claimant or plaintiff in such Third-Third Party Claim and has not given to the liability of the Indemnifying Person Indemnified Party an unconditional release from all Liability with respect to such Third-Third Party Claim.
6.5.2 Notwithstanding anything contained in Section 6.5.1 to the contrary, the Indemnifying Party shall not be entitled to control, and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any Third Party Claim if any of the following conditions are not satisfied:
(a) the Indemnifying Party shall acknowledge in writing that it shall be limited fully responsible for all Losses relating to the amount or the monetary equivalent of the rejected settlement and related expenses.such proceeding;
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with must diligently defend such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.proceeding;
(c) If the Indemnifying Person fails to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from must furnish the Indemnified Person, Party with evidence that the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance financial resources of the Indemnifying PersonParty (or the funds available in the escrow account with respect to claims against the escrow account), in the Indemnified Party’s ability reasonable judgment, are and will be sufficient (when considering Losses in respect of all other outstanding claims) to fulfill its obligations satisfy any Losses relating to such proceeding;
(d) such proceeding shall not involve criminal actions or allegations of criminal conduct by the Indemnifying Party, and shall not involve claims for specific performance or other equitable relief; and
(e) there does not exist, in the Indemnified Party’s good faith judgment, based on the advice of outside legal counsel, a conflict of interest which, under this Article 10 applicable principles of legal ethics, could reasonably be expected to prohibit a single legal counsel from representing both the Indemnified Party and the Indemnifying Party in connection with such Third-Party Claimproceeding.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Patriot National, Inc.), Asset Purchase Agreement (Patriot National, Inc.)
Indemnification Procedure for Third Party Claims. (a) In the event that any Proceeding for which an Indemnifying Party may be liable to an Indemnified Party hereunder is asserted or sought to be collected by a third party (the “Indemnified Person”) desires to make a claim against any other party (the “Indemnifying Person”) in connection with any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim or demand made by any Person not a party to this Agreement against the Indemnified Person (a “Third-Third Party Claim”), such the Indemnified Person must Party shall promptly notify the Indemnifying Person Party in writing, writing of the Third-such Third Party Claim (a “Third-Party Claim Notice”) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice of the Third-Party Claim; provided, that failure to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Person shall have been actually and materially prejudiced as a result of such failure. Upon receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the settlement and related expenses); provided, however, that upon rejection of the failure to provide prompt notice shall not release the Indemnifying Party from any settlement obligations hereunder except to the extent such Indemnifying Party is materially prejudiced by such failure and related expenses, shall not relieve such Indemnifying Party from obligations it may otherwise have under this Article VIII. The Claim Notice shall specify in reasonable detail the Indemnified Person shall assume control amount of the defense Loss, if known, and contain a reference to the provision(s) of this Agreement in respect of which such Third-right of indemnification is claimed or arises. The Indemnified Party shall enclose with the Claim and the liability Notice a copy of the Indemnifying Person all papers served with respect to such Third-Third Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement Claim, if any, and related expensesany other documents evidencing such Third Party Claim.
(b) Subject to Section 6.2(i) and except as provided in Section 8.2(c), the Indemnifying Party shall have the right to assume the defense or prosecution of such Third Party Claim and any litigation resulting therefrom (a “Third Party Defense”), including (i) the employment of counsel reasonably satisfactory to Seller in the case of Seller Indemnified Parties, or Buyer, in the case of Buyer Indemnified Parties, (ii) the obligation to pay all reasonable expenses in connection therewith and (iii) the right to settle or compromise the Third Party Claim with the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, delayed or conditioned; provided that no such consent shall be required if the settlement or compromise includes as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party a complete release from all liability in respect of such Third Party Claim and requires only the payment of monetary damages and/or an admission of culpability on the part of the Indemnifying Party. The Indemnified Person Party shall retain have the right to employ its own separate counsel in any such Proceeding and to discuss matters with participate in the Third Party Defense thereof, but the fees and expenses of such counsel shall be at the Indemnified Party’s expense, unless (A) the Indemnifying Person related Party has agreed to pay the fees and expenses of such counsel, (B) the Indemnifying Party shall have failed promptly (after notice thereof from any Indemnified Party in compliance with this Agreement) to assume the defense of such Proceeding and employ counsel reasonably satisfactory to the Indemnified Party in any Third-such Proceeding or (C) the named parties to any such Proceeding (including any impleaded parties) include both the Indemnifying Party Claimand the Indemnified Party, and such Indemnified Party reasonably believes that there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party (in which case, if the Indemnified Party notifies the Indemnifying Party that it elects to employ separate counsel at the expense of the Indemnifying Party, the Indemnifying Party shall not have the right to assume the defense of which has been assumed by such Proceeding on behalf of the Indemnified Party); it being understood, however, that the Indemnifying Person pursuant to Section 10.3(aParty shall not, in connection with any one such Proceeding or separate but substantially similar or related Proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one (1) separate firm of this Agreementattorneys (together with appropriate local counsel) at any time for such Indemnified Party, but which firm shall be designated by Seller in the case of Seller Indemnified Person shall bear Parties, or Buyer, in the case of Buyer Indemnified Parties, and shall be solely responsible for its own costs reasonably satisfactory to the Indemnifying Party. If the Indemnified Party so assumes the Third Party Defense of any Proceeding, the Indemnified Party will not, without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld, delayed or conditioned), settle, compromise or consent to the entering of any judgment in respect of which indemnity may be sought hereunder.
(c) With respect to the NGL Matter, Buyer acknowledges and expenses in connection with such participationagrees that Seller shall have the sole right to control any litigation or other legal, administrative or judicial proceeding related thereto and Buyer shall have no right to participate therein; provided, however, thatin the event that any Buyer Indemnified Party has been made a named party to such matter, subject Buyer shall have the right to Section 10.3(aemploy separate counsel (together with appropriate local counsel) above, all decisions of the Indemnifying Person shall be final reasonably acceptable to Seller and the Indemnified Person shall cooperate with the Indemnifying Person in all respects to participate in the defense of thereof, and the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person of such counsel shall be entitled at Seller’s expense. Buyer shall have no consent rights to participate at its own expense and with its own the employment of counsel by Seller or Seller’s right to settle or compromise the NGL Matter; provided, however, in the defense event that any Buyer Indemnified Party has been made a named party to such matter, Seller will not, without Buyer’s prior written consent (which consent shall not be unreasonably withheld, delayed or conditioned), settle, compromise or consent to the entering of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement judgment in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance respect of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party ClaimNGL Matter.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Par Petroleum Corp/Co), Purchase and Sale Agreement (Par Petroleum Corp/Co)
Indemnification Procedure for Third Party Claims. (a) In the event that an Indemnitee becomes aware of the possibility of any claim or the commencement of any Action by a third party (the “Indemnified Person”) desires to make a claim against any other party (the “Indemnifying Person”) in connection with any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim which indemnity may be sought under the provisions of Section 6.3(a), Section 6.16(c), Section 6.20 or demand made by any Person not a party to this Agreement against the Indemnified Person Article IX (a “Third-Third Party Claim”), such Indemnified Person must the Indemnitee shall notify the Indemnifying Person Indemnitor in writing, writing of the Third-such Third Party Claim (such notice, a “Third-Notice of Claim”); provided that the failure or delay in notifying the Indemnitor of such Third Party Claim Notice”) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person will not relieve the Indemnitor of notice of any Liability it may have to the Third-Party Claim; provided, that failure to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder Indemnitee except to the extent that such failure or delay causes actual harm to the Indemnifying Person shall have been actually and materially prejudiced as a result of such failure. Upon receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the settlement and related expenses; provided, however, that upon rejection of any settlement and related expenses, the Indemnified Person shall assume control of the defense of such Third-Party Claim and the liability of the Indemnifying Person Indemnitor with respect to such Third-Third Party Claim. Any Notice of Claim shall describe the Third Party Claim in reasonable detail, shall be limited to include copies of all written material written evidence thereof and shall indicate the amount or the monetary equivalent estimated amount, if reasonably practicable, of the rejected settlement and related expensesLoss that has been or may be sustained by the Indemnified Party.
(b) The Indemnified Person shall retain Indemnitor will have 30 days from the right date on which the Indemnitor received the Notice of Claim (the “Indemnitor Defense Review Period”) to employ notify the Indemnitee that the Indemnitor desires to assume the defense or prosecution of such Third Party Claim and any litigation resulting therefrom with counsel reasonably acceptable to the Indemnitee and at the sole cost and expense of the Indemnitor (a “Third Party Defense”). At any time prior to the Indemnitor’s assumption of the Third Party Defense in accordance herewith, the Indemnitee may file any motion, answer or other pleading or take any other action that the Indemnitee in good faith believes to be necessary to protect its interests. If the Indemnitor assumes the Third Party Defense in accordance herewith: (i) the Indemnitee may, at its own counsel expense, retain separate co‑counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects participate in the defense of the Third-Third Party Claim, including refraining from taking any position adverse but the Indemnitor shall control the investigation, defense and settlement thereof; (ii) the Indemnitor will not consent to the Indemnifying Personentry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnitee which consent shall not be unreasonably delayed, conditioned or withheld; (iii) the Indemnitor shall conduct the Third Party Defense actively and diligently and keep the Indemnitee reasonably informed about developments in connection with the Third Party Defense; (iv) the Indemnitor will not take any action, or omit to take any action, without the consent of the Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), that would cause any Contracts, correspondence or other documents of the Indemnitee or its Affiliates to be disclosed to a third party; and (v) the Indemnitee will provide reasonable cooperation in the Third Party Defense. Notwithstanding the foregoing, if counsel for the Indemnitee reasonably determines that there is a conflict between the positions of the Indemnitor and the Indemnitee in conducting the defense of such Action or that there are legal defenses available to such Indemnitee different from or in addition to those available to the Indemnitor, then counsel for the Indemnitee shall be entitled, if the Indemnitee so elects, to conduct the defense to the extent reasonably determined by such counsel to protect the interests of the Indemnitee, at the expense of the Indemnitor but only with respect to issues with respect to which such conflict exists.
(c) If the Indemnifying Person fails Indemnitor does not assume the Third Party Defense prior to give notice the end of the assumption Indemnitor Defense Review Period, the Indemnitee shall have the right to assume the Third Party Defense with counsel reasonably acceptable to the Indemnitor, at the expense of the Indemnitor; provided, however, that the Indemnitor shall have the right, at its expense, to participate in such Third Party Defense but the Indemnitee shall control the investigation, defense and settlement thereof. The Indemnitee shall conduct the Third Party Defense actively and diligently, and the Indemnitor will provide reasonable cooperation in the Third Party Defense. The Indemnitee shall have the right to consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim in any manner and on such terms as it may deem appropriate without the consent of the Indemnitor; provided, however, that the amount of any settlement made or entry of any judgment consented to by the Indemnitee without the consent of the Indemnitor (not to be unreasonably withheld or delayed) shall not be determinative of the validity of the claim.
(d) Notwithstanding anything herein to the contrary, without the written consent of the Purchaser, which will not be unreasonably withheld, conditioned or delayed, the Seller shall not be entitled to assume any Third Party Defense: (i) to the extent that any such Third Party Claim seeks, in addition to or in lieu of monetary damages, any injunctive or other equitable relief against the Purchaser, the Company, any of its Subsidiaries or any of their respective Affiliates; (ii) if such Third Party Claim relates to or arises in connection with any criminal proceeding, Action, indictment, allegation or investigation against the Purchaser, the Company, any of its Subsidiaries or any of their respective Affiliates; or (iii) if the Seller has failed or is failing to vigorously prosecute or defend such Third Party Claim.
(e) The Seller and the Purchaser shall cooperate with the each other in all reasonable aspects in connection with the defense of any Third Party Claim, including (i) making available (subject to the provisions of Section 6.11) records relating to such Third Party Claim and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses), to the defending party, management employees of the non-defending party as may reasonably be necessary for the preparation of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Third Party Claim, and (ii) making available the Indemnified Person shall furnish benefits of the Indemnifying Person with written notice of any proposed settlement Policies in sufficient time effect prior to allow the Indemnifying Person to act thereon. Within fifteen (15) days or after the giving of Closing to the extent available to satisfy any such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Third Party Claim.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Vectren Corp), Stock Purchase Agreement (Vectren Corp)
Indemnification Procedure for Third Party Claims. In the event that subsequent to the Closing any Person entitled to indemnification under this Agreement (an “Indemnified Party”) asserts a claim for indemnification or receives notice of the assertion of any claim or of the commencement of any action or proceeding by any entity that is not a party to this Agreement or an Affiliate of a party to this Agreement (including, but not limited to any domestic or foreign court or Governmental Authority, federal, state or local) (a “Third Party Claim”) against such Indemnified Party, against which a party to this Agreement is required to provide indemnification under this Agreement (an “Indemnifying Party”), the Indemnified Party shall give written notice together with a statement of any available information regarding such claim to the Indemnifying Party within the earlier of 15 days after learning of such claim or 10 days prior to the date a responsive pleading thereto is required to be filed (or within such shorter time as may be necessary to give the Indemnifying Party a reasonable opportunity to respond to such claim) and notwithstanding anything herein to the contrary, in the event the Indemnified Party receives a notice of the institution of audit procedures, a notice of adjustment, or a statutory notice of deficiency from the Internal Revenue Service which requires the filing of a document, the Indemnified Party shall furnish the Indemnifying Party with a copy of such notice at least 30 days prior to the date such document is required to be filed (or promptly upon receipt by the Indemnified Party, if the Indemnified Party receives such notice, within such 30 day period). The Indemnifying Party shall have the right, upon written notice to the Indemnified Party (the “Defense Notice”) within 30 days after receipt from the Indemnified Party of notice of such claim, to conduct at its expense the defense against such claim in its own name, or if necessary in the name of the Indemnified Party. The delivery of a Defense Notice shall not constitute an admission with respect to the claim for indemnification.
(a) In the event that any party (the “Indemnifying Party shall fail to give the Defense Notice, it shall be deemed to have elected not to conduct the defense of the subject claim, and in such event the Indemnified Person”) desires Party shall have the right to make a conduct such defense in good faith and to compromise and settle the claim against any without prior consent of the Indemnifying Party and the Indemnifying Party will be liable for all costs, expenses, settlement amounts or other party (the “Indemnifying Person”) Losses paid or incurred in connection with any Losses for which therewith.
(b) In the event that the Indemnifying Party does deliver a Defense Notice and thereby elects to conduct the defense of the subject claim, the Indemnified Person Party will cooperate with and make available to the Indemnifying Party, the insurance carrier (if applicable) and such attorneys in such assistance and materials as they may seek indemnification hereunder in respect reasonably request, all at the expense of a claim or demand made by any Person not a party to this Agreement against the Indemnifying Party, and the Indemnified Person (a “Third-Party Claim”)shall have the right at its expense to participate in the defense assisted by counsel of its own choosing, such provided that the Indemnified Person must notify Party shall have the right to compromise and settle the claim only with the prior written consent of the Indemnifying Person in writingParty, which consent shall not be unreasonably withheld or delayed.
(c) Without the prior written consent of the Third-Indemnified Party, the Indemnifying Party will not enter into any settlement of any Third Party Claim (a “Third-Party Claim Notice”) as promptly as reasonably possible after receiptor cease to defend against such claim, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice of the Third-Party Claim; provided, that failure if pursuant to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Person shall have been actually and materially prejudiced or as a result of such failure. Upon receipt settlement or cessation, (i) injunctive or other equitable relief would be imposed against the Indemnified Party, or (ii) such settlement or cessation would lead to liability or create any financial or other obligation on the part of the Third-Indemnified Party Claim Notice from for which the Indemnified PersonParty is not entitled to indemnification hereunder.
(d) The Indemnifying Party shall not be entitled to control, and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent that claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party (and the cost of such defense shall constitute an amount for which the Indemnified Party is entitled to indemnification hereunder).
(e) If a firm decision is made to settle a Third Party Claim, which offer the Indemnifying Party is permitted to settle under this Section 12.3, and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, Party will give written notice to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior Party to executing any settlement agreement and that effect. If the Indemnified Person shall have the right Party fails to approve or reject the settlement and related expenses; provided, however, that upon rejection consent to such firm offer within 15 calendar days after its receipt of any settlement and related expensessuch notice, the Indemnified Person shall assume control of the defense of such Third-Party Claim and the liability of the Indemnifying Person with respect to such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall may continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to contest or defend such Third-Third Party Claim and, in such event, the maximum liability of the Indemnifying Person shall indemnify Party as to such Third Party Claim will not exceed the Indemnified Person for all reasonable fees amount of such settlement offer, plus costs and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses paid or incurred by the Indemnified Person in connection with such Claim; (b) assumes Party through the defense end of such Third15-Party Claim; day period.
(f) Any judgment entered or settlement agreed upon in the manner provided herein shall be binding upon the Indemnifying Party, and (c) takes such other actions as shall conclusively be deemed to be an obligation with respect to which the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability Party is entitled to fulfill its obligations under this Article 10 in connection with such Third-Party Claimprompt indemnification hereunder.
Appears in 2 contracts
Sources: Asset Contribution and Exchange Agreement, Asset Contribution and Exchange Agreement (Novamed Inc)
Indemnification Procedure for Third Party Claims. (a) In Except as ------------------------------------------------ otherwise provided herein, in the event that any party (the “Indemnified Person”) desires to make a claim against any other party (the “Indemnifying Person”) in connection with any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim or demand made by any Person not a party to this Agreement against the Indemnified Person (a “Third-Party Claim”), such Indemnified Person must notify the Indemnifying Person in writing, of the Third-Party Claim (initiation of any Legal Proceeding against an Indemnitee by a “Third-Party Claim Notice”) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice of the Third-Party Claim; provided, that failure to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Person shall have been actually and materially prejudiced as a result of such failure. Upon receipt of the Third-Party Claim Notice from the Indemnified Personthird party, the Indemnifying Person Indemnitor shall be entitledentitled to assume the defense thereof, at the Indemnifying Person’s election, to assume or participate in Indemnitor's sole expense. If the Indemnitor assumes the defense of any Third-Party Claim at Legal Proceeding, it will not settle the cost Legal Proceeding without the prior written consent of Indemnifying Personthe Indemnitee (which shall not be unreasonably withheld or delayed). In any case The Indemnitee shall cooperate in which all reasonable respects with the Indemnifying Person assumes Indemnitor and its attorneys in the investigation, trial and defense of any Legal Proceeding and any appeal arising therefrom (including the Third-Party Claimfiling in the Indemnitee's name of appropriate cross claims and counterclaims). The Indemnitee may, at its own cost, participate in any investigation, trial and defense of such Legal Proceeding controlled by the Indemnitor and any appeal arising therefrom. If after receipt of a written notice pursuant to Section 9.4 hereof, the Indemnifying Person Indemnitor does not undertake to defend any such Legal Proceeding, the Indemnitee may, but shall give the Indemnified Person ten (10) calendar days’ notice prior to executing have no obligation to, contest or defend against any settlement agreement Legal Proceeding and the Indemnified Person Indemnitor shall be bound by the result obtained with respect thereto by the Indemnitee (including, without limitation, the settlement thereof without the consent of the Indemnitor). If there are one or more legal defenses available to the Indemnitee that conflict with those available to the Indemnitor, the Indemnitee shall have the right to approve or reject assume the settlement and related expensesdefense of the Legal Proceeding at the expense of the Indemnitor with counsel reasonably acceptable to the Indemnitor; provided, however, that upon rejection of any settlement and related expenses, the Indemnified Person shall assume control Indemnitee may not settle such Legal Proceeding without the consent of the defense of such Third-Party Claim and the liability of the Indemnifying Person with respect to such Third-Party Claim Indemnitor, which consent shall not be limited to the amount unreasonably withheld or the monetary equivalent of the rejected settlement and related expensesdelayed.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party Claim.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Pameco Corp), Securities Purchase Agreement (Littlejohn Fund Ii L P)
Indemnification Procedure for Third Party Claims. (a) In the event that of any party (------------------------------------------------ Indemnity Claim brought by a third party, Indemnitor shall promptly notify the “Indemnified Person”) desires to make a claim against any other party (Indemnitee of such Indemnity Claim, specifying in reasonable detail the “Indemnifying Person”) in connection with any Losses for Indemnity Claim and the circumstance under which it arose, and the Indemnified Person may seek indemnification hereunder in respect amount of a claim or demand made by any Person not a party to this Agreement the liability asserted against the Indemnified Person (a “Third-Party Claim”), such Indemnified Person must notify the Indemnifying Person in writing, Indemnitee by reason of the Third-Party Claim (a “Third-Party Claim Notice”) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice of the Third-Party Indemnity Claim; provided, that failure to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Person shall have been actually and materially prejudiced as a result of such failure. Upon receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person Within ten (10) calendar days’ business days of the receipt of such notice prior (or sooner if the nature of the Indemnity Claim so requires) the Indemnitor shall notify the Indemnitee of its intent to executing compromise or defend such Indemnity Claim or to Contest. Any Contest shall be governed by the provisions of Section 10.2 herein. The Indemnitor may elect to compromise or defend, at its own expense and by its own counsel, any settlement agreement such Indemnity Claim. If the Indemnitor elects to compromise or defend such Indemnity Claim, the Indemnitee shall cooperate, at the expense of the Indemnitor, in the compromise of, or defense against, such Indemnitee Claim. If the Indemnitor fails to notify the Indemnitee of its election as herein provided or loses the Contest as provided in 10.2 herein, the Indemnitee may pay, compromise or defend such Indemnity Claim. Except as otherwise provided herein, in the event of the initiation of any Indemnity Claim against an Indemnitee by a third party and the Indemnified Person Indemnitor elects to compromise or defend, the Indemnitor shall have the absolute right after the receipt of notice, at its option and at its own expense, to approve be represented by counsel of its choice, and to defend against, negotiate, settle or reject the settlement and related expensesotherwise deal with any Indemnity Claim,; provided, however, that upon rejection the Indemnitee may participate in any -------- ------- such proceeding with counsel of its choice and at its expense and the Indemnitor shall not settle any such Indemnity Claim unless the Indemnitor is fully released without any admission of liability. The parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any settlement such Indemnity Claim. To the extent the Indemnitor elects not to defend such Indemnity Claim, and related expensesthe Indemnitee defends against or otherwise deals with any such Indemnity Claim, the Indemnified Person shall assume Indemnitee may retain counsel, at the expense of the Indemnitor, and control of the defense of such Third-Party Indemnity Claim. If the Indemnitee shall settle any such Indemnity Claim and without the liability consent of the Indemnifying Person Indemnitor, the Indemnitee shall thereafter have no claim against the Indemnitor under this Article X with respect to any loss, liability, claim, obligation, damage and expense occasioned by such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expensessettlement.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party Claim.
Appears in 2 contracts
Sources: Termination Agreement (Imperial Credit Industries Inc), Termination Agreement (Impac Mortgage Holdings Inc)
Indemnification Procedure for Third Party Claims. In the event that subsequent to the Closing any Person entitled to indemnification under this Agreement (an "Indemnified Party") asserts a claim for indemnification or receives notice of the assertion of any claim or of the commencement of any action or proceeding by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including, but not limited to any domestic or foreign court or Governmental Entity) (a "Third Party Claim") against such Indemnified Party, against which a party to this Agreement is required to provide indemnification under this Agreement (an "Indemnifying Party"), the Indemnified Party shall give written notice together with a statement of any available information (other than privileged information) regarding such claim to the Indemnifying Party within thirty (30) Calendar Days after learning of such claim (or within such shorter time as may be necessary to give the Indemnifying Party a reasonable opportunity to respond to such claim). The Indemnifying Party shall have the right, upon written notice to the Indemnified Party (the "Defense Notice") within fifteen (15) Calendar Days after receipt from the Indemnified Party of notice of such claim, which notice by the Indemnifying Party shall specify the counsel it will appoint to defend such claim ("Defense Counsel"), to conduct at its expense, the defense against such claim in its own name, or, if necessary, in the name of the Indemnified Party; provided, however, that the Indemnified Party shall have the right to approve the Defense Counsel, which approval shall not be unreasonably withheld, and in the event the Indemnifying Party and the Indemnified Party cannot agree upon such counsel within ten (10) Calendar Days after the Defense Notice is provided, then the Indemnifying Party shall propose an alternate Defense Counsel, which shall be subject again to the Indemnified Party's approval which approval shall not be unreasonably withheld. If the parties still fail to agree on the Defense Counsel, then, at such time, they shall mutually agree in good faith on a procedure to determine the Defense Counsel. In the event that, in the opinion of legal counsel to the Indemnified Party, there is a conflict of interest inherent in the appointment of Defense Counsel by the Indemnifying Party, then the Indemnified Party shall have the right to appoint separate Defense Counsel, which shall be paid for by the Indemnifying Party.
(a) In the event that any party (the “Indemnifying Party shall fail to give the Defense Notice within said 15 Calendar Day period, it shall be deemed to have elected not to conduct the defense of the Third Party Claim, and in such event the Indemnified Person”) desires Party shall have the right to make a conduct the defense in good faith and to compromise and settle the claim against any in good faith without prior consent of the Indemnifying Party, and the Indemnifying Party will be liable for all reasonable costs, expenses, settlement amounts or other party (the “Indemnifying Person”) Losses paid or incurred in connection therewith.
(b) In the event that the Indemnifying Party does deliver a Defense Notice and thereby elects to conduct the defense of the Third Party Claim, the Indemnifying Party shall be entitled to have the exclusive control over said defense settlement of the subject claim and the Indemnified Party will cooperate with and make available to the Indemnifying Party such assistance and materials as it may reasonably request, all at the expense of the Indemnifying Party, and the Indemnified Party shall have the right at its expense to participate in the defense assisted by counsel of its own choosing. In such an event, the Indemnifying Party will not settle the subject claim without the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld.
(c) Without the prior written consent of the Indemnified Party, the Indemnifying Party will not enter into any Losses settlement of any Third Party Claim or cease to defend against such claim, if, pursuant to or as a result of such settlement or cessation, (i) injunctive relief or specific performance would be imposed against the Indemnified Party, or (ii) such settlement or cessation would lead to liability or create any financial or other obligation on the part of the Indemnified Party for which the Indemnified Person Party is not entitled to indemnification hereunder.
(d) Notwithstanding paragraph (b) above, the Indemnifying Party shall not be entitled to control, but may seek indemnification hereunder in respect participate in, and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim (i) that seeks a claim temporary restraining order, a preliminary or demand made by any Person not a party to this Agreement permanent injunction or specific performance against the Indemnified Person Party, (ii) to the extent such claim involves criminal allegations against the Indemnified Party, (iii) that if unsuccessful, would set a “Third-precedent that would materially interfere with, or have a material adverse effect on, the business or financial condition of the Indemnified Party, or (iv) to the extent such claim imposes liability on the part of the Indemnified Party Claim”)for which the Indemnified Party is not entitled to indemnification hereunder. In such an event, such Indemnified Person must notify the Indemnifying Person in writing, Party will still have all of its obligations hereunder provided that the Indemnified Party will not settle the subject claim without the prior written consent of the Third-Indemnifying Party, which consent will not be unreasonably withheld.
(e) Any final judgment entered or settlement agreed upon in the manner provided herein shall be binding upon the Indemnifying Party, and shall conclusively be deemed to be an obligation with respect to which the Indemnified Party Claim is entitled to prompt indemnification hereunder.
(a “Third-f) A failure by an Indemnified Party Claim Notice”) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice of the Third-Party Claim; provided, that failure to give a Third-Party Claim Notice on a timely basis shall timely, complete or accurate notice as provided in this SECTION 6.4 will not affect the indemnification provided rights or obligations of any party hereunder except and only to the extent the Indemnifying Person shall have been actually and materially prejudiced that, as a result of such failure. Upon receipt , any party entitled to receive such notice was deprived of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the its right to approve recover any payment under its applicable insurance coverage or reject the settlement was otherwise directly and related expenses; provided, however, that upon rejection of any settlement and related expenses, the Indemnified Person shall assume control of the defense materially damaged as a result of such Third-Party Claim and the liability of the Indemnifying Person with respect to such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails failure to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such timely notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party Claim.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Wells Gardner Electronics Corp), Shareholder Purchase Agreement (Wells Gardner Electronics Corp)
Indemnification Procedure for Third Party Claims. In the event that subsequent to the Closing any person or entity entitled to indemnification under this Agreement (an "Indemnified Party") asserts a claim for indemnification or receives notice of the assertion of any claim or of the commencement of any action or proceeding by any entity who is not a party to this Agreement or an Affiliate of a party to this Agreement (including, but not limited to any domestic or foreign court or Governmental Body, federal, state or local) (a "Third Party Claim") against such Indemnified Party, against which a party to this Agreement is required to provide indemnification under this Agreement (an "Indemnifying Party"), the Indemnified Party shall give written notice together with a statement of any available information (other than privileged information) regarding such claim to the Indemnifying Party within twenty (20) business days after learning of such claim (or within such shorter time as may be necessary to give the Indemnifying Party a reasonable opportunity to respond to such claim). The Indemnifying Party shall have the right, upon written notice to the Indemnified Party (the "Defense Notice") within fifteen days (15) after receipt from the Indemnified Party of notice of such claim, which notice by the Indemnifying Party shall specify the counsel it will appoint to defend such claim ("Defense Counsel"), to conduct at its expense the defense against such claim in its own name, or if necessary in the name of the Indemnified Party; provided, however, that the Indemnified Party shall have the right to approve the Defense Counsel, which approval shall not be unreasonably withheld, and in the event the Indemnifying Party and the Indemnified Party cannot agree upon such counsel within ten (10) days after the Defense Notice is provided, then the Indemnifying Party shall propose an alternate Defense Counsel, which shall be subject again to the Indemnified Party's approval which approval shall not be unreasonably withheld. If the parties still fail to agree on the Defense Counsel, then, at such time, they shall mutually agree in good faith on a procedure to determine the Defense Counsel. The provisions set forth in this SECTION 13.4 shall not apply to matters in connection with any Pre-Closing ▇▇▇▇▇ ▇▇▇ Matters, which matters are subject to the provisions set forth in SECTION 13.5 below.
(a) In the event that any party (the “Indemnifying Party shall fail to give the Defense Notice within said 15 day period, it shall be deemed to have elected not to conduct the defense of the subject claim, and in such event the Indemnified Person”) desires Party shall have the right to make a conduct the defense in good faith and to compromise and settle the claim against any in good faith without prior consent of the Indemnifying Party and the Indemnifying Party will be liable for all reasonable costs, expenses, settlement amounts or other party (the “Indemnifying Person”) Losses paid or incurred in connection therewith.
(b) In the event that the Indemnifying Party does deliver a Defense Notice and thereby elects to conduct the defense of the subject claim, the Indemnifying Party shall be entitled to have the exclusive control over said defense settlement of the subject claim and the Indemnified Party will cooperate with and make available to the Indemnifying Party such reasonable assistance and reasonable materials (including providing books, records and reasonable time of personnel) as it may reasonably request, and the Indemnified Party shall have the right at its expense to participate in the defense assisted by counsel of its own choosing. If the Indemnified Party elects to so participate in the defense of the subject claim, the Indemnifying Party will not settle the subject claim without the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld.
(c) Without the prior written consent of the Indemnified Party, the Indemnifying Party will not enter into any Losses settlement of any Third Party Claim or cease to defend against such claim, if pursuant to or as a result of such settlement or cessation, (i) injunctive relief or specific performance would be imposed against the Indemnified Party, or (ii) such settlement or cessation would lead to liability or create any financial or other obligation on the part of the Indemnified Party for which the Indemnified Person Party is not entitled to indemnification hereunder.
(d) Notwithstanding paragraph (b) above, the Indemnifying Party shall not be entitled to control, but may seek indemnification hereunder in respect participate in, and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim (i) that seeks a claim temporary restraining order, a preliminary or demand made by any Person not a party to this Agreement permanent injunction or specific performance against the Indemnified Person Party, (ii) to the extent such claim involves criminal allegations against the Indemnified Party, (iii) that if unsuccessful, would set a “Third-precedent that would materially interfere with, or have a material adverse effect on, the business or financial condition of the Indemnified Party, or (iv) to the extent such claim imposes liability on the part of the Indemnified Party Claim”)for which the Indemnified Party is not entitled to indemnification hereunder due to the limitations set forth herein or otherwise. In such an event, such Indemnified Person must notify the Indemnifying Person in writing, Party will still have all of its obligations hereunder provided that the Indemnified Party will not settle the subject claim without the prior written consent of the Third-Indemnifying Party, which consent will not be unreasonably withheld delayed or conditioned.
(e) Any final judgment entered or settlement agreed upon in the manner provided herein shall be binding upon the Indemnifying Party, and shall conclusively be deemed to be an obligation with respect to which the Indemnified Party Claim is entitled to prompt indemnification hereunder.
(a “Third-f) A failure by an Indemnified Party Claim Notice”) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice of the Third-Party Claim; provided, that failure to give a Third-Party Claim Notice on a timely basis shall timely, complete or accurate notice as provided in this SECTION 13.4 will not affect the indemnification provided rights or obligations of any party hereunder except and only to the extent the Indemnifying Person shall have been actually and materially prejudiced that, as a result of such failure. Upon receipt , any party entitled to receive such notice was deprived of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the its right to approve recover any payment under its applicable insurance coverage or reject the settlement and related expenses; providedwas otherwise damaged in any material respect, however, that upon rejection of any settlement and related expenses, the Indemnified Person shall assume control of the defense as a result of such Third-Party Claim and the liability of the Indemnifying Person with respect to such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails failure to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such timely notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party Claim.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (K Tel International Inc), Purchase and Sale Agreement (Platinum Entertainment Inc)
Indemnification Procedure for Third Party Claims. (ai) In the event that an Indemnitee receives notice of the assertion of any claim or the commencement of any Action by a third party (the “Indemnified Person”) desires to make a claim against any other party (the “Indemnifying Person”) in connection with any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim or demand made by any Person not a party to which indemnity may be sought under the provisions of this Agreement against the Indemnified Person Article VI (a “Third-Third Party Claim”), such Indemnified Person must the Indemnitee shall notify the Indemnifying Person Indemnitor in writing, writing of the Third-such Third Party Claim (such notice, a “Third-Notice of Claim”); provided that the failure or delay in notifying the Indemnitor of such Third Party Claim Notice”) as promptly as reasonably possible after receiptwill not relieve the Indemnitor of any Liability it may have to the Indemnitee, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice of the Third-Party Claim; provided, that failure to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except and only to the extent that such failure or delay causes actual and material harm to the Indemnifying Person Indemnitor with respect to such Third Party Claim.
(ii) The Indemnitor will have 30 days from the date on which the Indemnitor received the Notice of Claim (the “Indemnitor Defense Review Period”) to notify the Indemnitee that the Indemnitor desires to assume the defense or prosecution of such Third Party Claim and any litigation resulting therefrom with counsel reasonably acceptable to the Indemnitee and at the sole cost and expense of the Indemnitor (a “Third Party Defense”). If the Indemnitor assumes the Third Party Defense in accordance herewith, (i) the Indemnitee may retain separate co-counsel, but the fees and expenses of such counsel shall not be at the expense of the Indemnitor unless (A) the Indemnitor shall have been actually and materially prejudiced as a result failed during the Indemnitor Defense Review Period to assume the defense of such failure. Upon receipt of the Third-Third Party Claim Notice from or (B) the Indemnified Personemployment of such counsel has been specifically authorized in writing by the Indemnitor, the Indemnifying Person which authorization shall not be entitledunreasonably withheld, at the Indemnifying Person’s election, to assume or and participate in the defense of the Third Party Claim, but the Indemnitor shall control the investigation, defense and settlement thereof; (ii) the Indemnitor will not consent to the entry of any Third-judgment or enter into any settlement with respect to the Third Party Claim at without the cost prior written consent of Indemnifying the Indemnitee, which shall not be unreasonably withheld; (iii) the Indemnitor shall be conclusively deemed to have acknowledged that the Third Party Claim is within the scope of its indemnity obligation under this Agreement; (iv) the Indemnitor shall conduct the Third Party Defense actively and diligently and provide copies of all correspondence and related documentation in connection with the Third Party Defense to the Indemnitee; (v) the Indemnitor will not take any action, or omit to take any action, without the consent of the Indemnitee, that would cause (x) any Contracts, correspondence or other documents of the Indemnitee or its Affiliates to be disclosed to a third party or (y) any director, officer, employee or agent of the Indemnitee to take any action related to the Third Party Claim which could interfere with or contravene such Person’s duties to the Indemnitee or its Affiliates and (vi) the Indemnitee will provide reasonable cooperation in the Third Party Defense. In any case Notwithstanding the foregoing, if counsel for the Indemnitee reasonably determines that there is a conflict between the positions of the Indemnitor and the Indemnitee in which the Indemnifying Person assumes conducting the defense of such Action or that there are legal defenses available to such Indemnitee different from or in addition to those available to the Third-Indemnitor, then counsel for the Indemnitee shall be entitled, if the Indemnitee so elects, to conduct the defense to the extent reasonably determined by such counsel to protect the interests of the Indemnitee, at the expense of the Indemnitor.
(iii) If the Indemnitor does not assume the Third Party ClaimDefense, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person Indemnitee shall have the right to approve or reject assume the settlement and related expensesThird Party Defense with counsel of its choice at the expense of the Indemnitor; provided, however, that upon rejection the Indemnitor shall have the right, at its expense, to participate in such Third Party Defense, but the Indemnitee shall control the investigation, defense and settlement thereof. The Indemnitee shall conduct the Third Party Defense actively and diligently, and the Indemnitor will provide reasonable cooperation in the Third Party Defense. The Indemnitee shall have the right to consent to the entry of any judgment or enter into any settlement and related expenses, the Indemnified Person shall assume control of the defense of such Third-Party Claim and the liability of the Indemnifying Person with respect to such Third-the Third Party Claim shall be limited to in any manner and on such terms as it may deem appropriate without the amount or the monetary equivalent consent of the rejected settlement and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participationIndemnitor; provided, however, that, subject that the amount of any settlement made or entry of any judgment consented to Section 10.3(a) above, all decisions by the Indemnitee without the consent of the Indemnifying Person Indemnitor (not to be unreasonably withheld or delayed) shall not be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense determinative of the Third-validity of the claim.
(iv) In connection with any Third Party Claim, including refraining from taking any position adverse the Indemnitor hereby consents to the Indemnifying Personnonexclusive jurisdiction of any court in which an Action in respect of a Third Party Claim is brought against any Indemnitee for purposes of any claim that the Indemnitee may have under this Article VI with respect to such Action or the matters alleged therein and agrees that process may be served on the Indemnitor with respect to such a claim anywhere in the world.
(cv) If the Indemnifying Person fails to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period The Indemnitor will not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume the Third Party Defense if: (but shall continue to be entitled to participate inA) such defense. The Indemnified Person may, at its option, continue to defend such Third-the Third Party Claim andseeks, in such eventaddition to or in lieu of monetary damages, any injunctive or other equitable relief; (B) the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses Third Party Claim relates to or arises in connection therewith with any criminal Action, indictment or allegation; (provided it is C) a Third-conflict exists between the Indemnitee and the Indemnitor in respect of the Third Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with Section 9.4(a); (D) the terms Third Party Claim involves a customer or supplier of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection Buyer or the Business; (E) the Indemnitee reasonably believes an adverse determination with respect to the Third Party Claim would be detrimental to or injure the Indemnitee’s reputation or business prospects; (F) the Indemnitor has failed or is failing to vigorously prosecute or defend such Third Party Claim; (bG) assumes the defense Indemnitor fails to provide reasonable assurance to the Indemnitee of such Third-its financial capacity to prosecute the Third Party ClaimDefense or the maximum foreseeable damages or amount that may be claimed exceeds the Escrow Amount; and or (cH) takes such other actions as the Indemnified Person may reasonably request as assurance of Third Party Claim could give rise to Losses which are more than the Indemnifying Person’s ability amount indemnifiable by the Indemnitor pursuant to fulfill its obligations under this Article 10 in connection with such Third-Party ClaimVI.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (SpartanNash Co)
Indemnification Procedure for Third Party Claims. (a) In the event that any Proceeding for which an Indemnifying Party may be liable to an Indemnified Party hereunder is asserted or sought to be collected by a third-party (the “Indemnified Person”) desires to make a claim against any other party (the “Indemnifying Person”) in connection with any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim or demand made by any Person not a party to this Agreement against the Indemnified Person (a “Third-Third Party Claim”), such the Indemnified Person must Party shall promptly notify the Indemnifying Person Party in writing, writing of the Third-such Third Party Claim (a “Third-Party Claim Notice”) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice of the Third-Party Claim); provided, that the failure to give a Third-Party Claim Notice on a timely basis provide prompt notice shall not affect release the indemnification provided Indemnifying Party from any obligations hereunder except to the extent the such Indemnifying Person shall have been actually and Party is materially prejudiced as a result of by such failurefailure and shall not relieve such Indemnifying Party from obligations it may otherwise have under this Article IX. Upon receipt The Claim Notice shall specify in reasonable detail the amount of the Third-Loss, if known, and contain a reference to the provision(s) of this Agreement in respect of which such right of indemnification is claimed or arises. The Indemnified Party shall enclose with the Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense a copy of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the settlement and related expenses; provided, however, that upon rejection of any settlement and related expenses, the Indemnified Person shall assume control of the defense of such Third-Party Claim and the liability of the Indemnifying Person all papers served with respect to such Third-Third Party Claim Claim, if any, and any other documents evidencing such Third Party Claim. For all purposes of this Article IX, the Sellers’ Representative shall be limited considered the “Indemnifying Party” for purposes of receiving any notices related to the amount or the monetary equivalent of the rejected settlement and related expensesclaims for indemnification by Buyer Indemnified Parties.
(b) The Indemnifying Party shall have the right to assume the defense or prosecution of such Third Party Claim and any litigation resulting therefrom (a “Third Party Defense”) by written notice to the Indemnified Person Party, including (i) the employment of counsel reasonably satisfactory to the Sellers’ Representative, in the case of Seller Indemnified Parties, or Buyer, in the case of Buyer Indemnified Parties, (ii) the obligation to pay all expenses in connection therewith and (iii) the right to settle or compromise the Third Party Claim with the consent of the Indemnified Party, which consent shall retain not be unreasonably withheld or delayed, provided that no such consent shall be required if the settlement or compromise does not include remedies other than the payment of monetary damages or an admission of culpability. The Indemnified Party shall have the right to employ its own separate counsel in any such Proceeding and to discuss matters with participate in the Third Party Defense thereof, but the fees and expenses of such counsel shall be at the Indemnified Party’s expense, unless (i) the Indemnifying Person related Party has agreed to pay the fees and expenses of such counsel, (ii) the Indemnifying Party shall have failed promptly (after notice thereof from any Indemnified Party) to assume the defense of such Proceeding and employ counsel reasonably satisfactory to the Indemnified Party in any Third-such Proceeding or (iii) the named parties to any such Proceeding (including any impleaded parties) include both the Indemnifying Party Claimand the Indemnified Party, and such Indemnified Party reasonably believes that there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party (in which case, if the Indemnified Party notifies the Indemnifying Party that it elects to employ separate counsel at the expense of the Indemnifying Party, the Indemnifying Party shall not have the right to assume the defense of which has been assumed by such Proceeding on behalf of the Indemnified Party); it being understood, however, that the Indemnifying Person pursuant to Section 10.3(a) of this AgreementParty shall not, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with any one such participation; provided, however, that, subject to Section 10.3(a) above, all decisions Proceeding or separate but substantially similar or related Proceedings in the same jurisdiction arising out of the Indemnifying Person shall same general allegations or circumstances, be final and liable for the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for such Indemnified Party, which firm shall be designated by the Sellers’ Representative, in connection therewith (provided it is a Third-Party Claim for which the case of Seller Indemnified Parties, or Buyer, in the case of Buyer Indemnified Parties, and shall be reasonably satisfactory to the Indemnifying Person is otherwise obligated to provide indemnification hereunder)Party. The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in If the defense Indemnified Party so assumes the Third Party Defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party ClaimProceeding, the Indemnified Person shall furnish Party will not, without the Indemnifying Person with Party’s prior written notice consent, settle, compromise or consent to the entering of any proposed settlement judgment in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving respect of such notice, the Indemnified Person shall which indemnity may be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party Claimsought hereunder.
Appears in 2 contracts
Sources: Merger Agreement (Seacor Holdings Inc /New/), Merger Agreement (Pacific Ethanol, Inc.)
Indemnification Procedure for Third Party Claims. (a) In the event that that, subsequent to the Closing, any party Person entitled to indemnification under this Agreement (an “Indemnified Party”) receives notice of the assertion of any claim or of the commencement of any action or proceeding by any Person who is not a Party to this Agreement or an Affiliate of a Party to this Agreement (a “Third Party Claim”) against such Indemnified Party, with respect to which a Party to this Agreement is or may be required to provide indemnification under this Agreement (an “Indemnifying Party”), the Indemnified Party shall give written notice to the Indemnifying Party as promptly as practicable after learning of such claim. Subject to Section 9.4(e), the Indemnifying Party shall have the right, upon written notice to the Indemnified Party (the “Indemnified PersonDefense Notice”) desires to make a claim against any other party within twenty (the “Indemnifying Person”20) in connection with any Losses for which days after receipt from the Indemnified Person may seek indemnification hereunder in respect Party of a notice of such claim, which notice by the Indemnifying Party shall specify the counsel it will appoint to defend such claim or demand made by any Person not a party to this Agreement against the Indemnified Person (a “Third-Party ClaimDefense Counsel”), to conduct at its expense the defense against such Indemnified Person must notify claim in its own name, or if necessary in the Indemnifying Person in writing, name of the Third-Party Claim (a “Third-Party Claim Notice”) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice of the Third-Party Claim; provided, that failure to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Person shall have been actually and materially prejudiced as a result of such failureParty. Upon receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the settlement and related expenses; provided, however, that upon rejection of any settlement and related expenses, the Indemnified Person shall assume control of the defense of such Third-Party Claim and the liability of the Indemnifying Person with respect to such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails to give notice of the assumption of the defense of any Third-Third Party Claim within a reasonable time period by the Indemnifying Party shall not constitute an admission of responsibility to indemnify the Indemnified Party.
(b) In the event that the Indemnifying Party shall fail to give the Defense Notice, it shall be deemed to have elected not to exceed forty-five (45) days after receipt conduct the defense of the Third-Party Claim Notice from subject claim, and in such event the Indemnified Person, Party shall have the Indemnifying Person shall no longer be entitled right to assume (but shall continue to be entitled to participate in) conduct such defense. The Indemnified Person mayParty may not settle such claim without the written consent of the Indemnifying Party, at its optionwhich consent shall not be unreasonably withheld, continue delayed or conditioned.
(c) In the event that the Indemnifying Party does deliver a Defense Notice and thereby elects to defend such Third-Party Claim and, in such eventconduct the defense of the subject claim, the Indemnifying Person Party shall indemnify have the right to conduct such defense and, except as provided in Section 9.4(d) below, to settle the claim without the prior consent of the Indemnified Person for all reasonable fees Party. The Indemnified Party will cooperate with and expenses in connection therewith (provided it is a Third-Party Claim for which make available to the Indemnifying Person is otherwise obligated Party such assistance and materials as it may reasonably request, all at the expense of the Indemnifying Party, and the Indemnified Party shall have the right at its expense to provide indemnification hereunder). monitor the defense assisted by counsel of its own choosing, provided that the Indemnified Party shall have the right to compromise and settle the claim only with the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed.
(d) No Indemnifying Party shall consent to the entry of any judgment or enter into any settlement without the prior written consent of the Indemnified Party (i) if such judgment or settlement does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect to such claim, (ii) if such judgment or settlement would result in the finding or admission of any violation of law, or (iii) if as a result of such consent or settlement, injunctive or other equitable relief would be imposed against the Indemnified Party.
(e) The Indemnifying Person Party shall not be entitled to control, and the Indemnified Party shall be entitled to participate at its own expense and with its own counsel in have sole control over, the defense or settlement of any Third-Party Claim claim if (i) the defense of which it does not assume. Prior claim for indemnification is with respect to effectuating any settlement of such Third-Party Claima criminal proceeding, action, indictment, allegation or investigation, (ii) the Indemnified Person shall furnish Party has been advised by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Person with written notice Party and the Indemnified Party, (iii) the third party asserting such claim is a client of any proposed settlement in sufficient time to allow the Business, (iv) the Indemnifying Person Party has failed or is failing to act thereon. Within fifteen vigorously prosecute or defend such claim or (15v) days after the giving of such notice, claim seeks an injunction or other equitable relief against the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses Party or Buyer; provided, that the Indemnified Person in accordance Party shall have the right to settle the claim only with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance prior written consent of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party ClaimParty, which consent shall not be unreasonably withheld, conditioned or delayed.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Alkami Technology, Inc.), Asset Purchase Agreement (Alkami Technology, Inc.)
Indemnification Procedure for Third Party Claims. (a) In Except as otherwise provided herein, in the event that any party (the “Indemnified Person”) desires to make a claim against any other party (the “Indemnifying Person”) in connection with any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim or demand made by any Person not a party to this Agreement against the Indemnified Person (a “Third-Party Claim”), such Indemnified Person must notify the Indemnifying Person in writing, of the Third-Party Claim (initiation of any Legal Proceeding against an Indemnitee by a “Third-Party Claim Notice”) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice of the Third-Party Claim; provided, that failure to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Person shall have been actually and materially prejudiced as a result of such failure. Upon receipt of the Third-Party Claim Notice from the Indemnified Personthird party, the Indemnifying Person Indemnitor shall be entitledentitled to assume the defense thereof, at the Indemnifying Person’s election, to assume or participate in Indemnitor's sole expense. If the Indemnitor assumes the defense of any Third-Party Claim Legal Proceeding, it will not settle the Legal Proceeding without the prior written consent , of the Indemnitee (which shall not be unreasonably withheld or delayed). The Indemnitee shall cooperate in all reasonable respects with the Indemnitor and its attorneys in the investigation, trial and defense of any Legal proceeding and any appeal arising therefrom (including the filing in the Indemnitee's name of appropriate cross claims and counterclaims). The Indemnitee may, at its own cost, participate in any investigation, trial and defense of such Legal Proceeding controlled by the Indemnitor and any appeal arising therefrom. If after receipt of a written notice pursuant to Section 9.5 hereof, the Indemnitor does not undertake to defend any such Legal Proceeding, the Indemnitee may, but shall have no obligation to, contest or defend against any Legal Proceeding and the Indemnitor shall be bound by the result obtained with respect thereto by the Indemnitee (including, without limitation, the settlement thereof without the consent of the Indemnitor). If there are one or more legal defenses available to the Indemnitee that conflict with those available to the Indemnitor, the Indemnitee shall have the right, at the cost expense of Indemnifying Person. In any case in which the Indemnifying Person assumes Indemnitor, to assume the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the settlement and related expensesLegal Proceeding; provided, however, that upon rejection of any settlement and related expenses, the Indemnified Person shall assume control Indemnitee may not settle such Legal Proceeding without the consent of the defense of such Third-Party Claim and the liability of the Indemnifying Person with respect to such Third-Party Claim Indemnitor, which consent shall not be limited to the amount unreasonably withheld or the monetary equivalent of the rejected settlement and related expensesdelayed.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party Claim.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Arrowhead Holdings Corp), Securities Purchase Agreement (Bhit Inc)
Indemnification Procedure for Third Party Claims. (a) In the event that of the initiation of any party (legal proceeding against an Indemnitee by a third party, the “Indemnified Person”) desires Indemnitor will have the absolute right after the receipt of notice, at its option and at its own expense, to make a claim against any other party (the “Indemnifying Person”) in connection be represented by counsel of its choice, and to defend against, negotiate, settle or otherwise deal with any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim proceeding, claim, or demand made by which relates to any Person not a party to this Agreement loss, liability or damage indemnified against the Indemnified Person (a “Third-Party Claim”), such Indemnified Person must notify the Indemnifying Person in writing, of the Third-Party Claim (a “Third-Party Claim Notice”) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice of the Third-Party Claim; provided, that failure to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Person shall have been actually and materially prejudiced as a result of such failure. Upon receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the settlement and related expenseshereunder; provided, however, that upon rejection the Indemnitee may participate in any such proceeding with counsel of its choice and at its expense. The parties will cooperate fully with each other in connection with the defense, negotiation or settlement of any settlement such legal proceeding, claim or demand. To the extent the Indemnitor elects not to defend such proceeding, claim or demand, and related expensesthe Indemnitee defends against or otherwise deals with any such proceeding, claim or demand, the Indemnified Person shall assume Indemnitee may retain counsel, at the expense of the Indemnitor, and control of the defense of such Third-Party Claim proceeding. Neither the Indemnitor nor the Indemnitee may settle any such proceeding without the consent of the other party, such consent not to be unreasonably withheld. After any final judgment or award has been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the liability time in which to appeal therefrom has expired, or a settlement has been consummated, or the Indemnitee and the Indemnitor have arrived at a mutually binding agreement with respect to each separate matter alleged to be indemnified by the Indemnitor hereunder, the Indemnitee will forward to the Indemnitor notice of the Indemnifying Person any sums due and owing by it with respect to such Third-Party Claim shall be limited matter and the Indemnitor will pay all of the sums so owing to the amount Indemnitee by wire transfer, certified or the monetary equivalent of the rejected settlement and related expenses.
bank cashier's check within thirty (b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (1530) days after the giving date of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party Claim.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Aetrium Inc), Asset Purchase Agreement (Aetrium Inc)
Indemnification Procedure for Third Party Claims. In the event that subsequent to the Closing any person or entity entitled to indemnification under this Agreement (an "INDEMNIFIED PARTY") asserts a claim for indemnification or receives notice of the assertion of any claim or of the commencement of any action or proceeding by any entity who is not a party to this Agreement or an Affiliate of such a party (including, but not limited to any domestic or foreign court or Governmental Authority, federal, state or local) (a "THIRD PARTY CLAIM") against such Indemnified Party, against which a party to this Agreement is required to provide indemnification under this Agreement (an "INDEMNIFYING PARTY"), the Indemnified Party shall give written notice together with a statement of any available information regarding such claim to the Indemnifying Party within thirty (30) days after learning of such claim (or within such shorter time as may be necessary to give the Indemnifying Party a reasonable opportunity to respond to such claim). The Indemnifying Party shall have the right, upon written notice to the Indemnified Party (the "DEFENSE NOTICE") within thirty (30) days after receipt from the Indemnified Party of notice of such claim, (which notice by the Indemnifying Party shall specify the counsel it will appoint to defend such claim ("DEFENSE COUNSEL")), to conduct at its expense the defense against such claim in its own name, or if necessary in the name of the Indemnified Party; PROVIDED, HOWEVER, that the Indemnified Party shall have the right to approve the Defense Counsel and in the event the Indemnifying Party and the Indemnified Party cannot agree upon such counsel within ten (10) days after the Defense Notice is provided, then the Indemnifying Party shall propose an alternate Defense Counsel, which shall be subject again to the Indemnified Party's approval.
(a) In the event that any party (the “Indemnifying Party shall fail to give such notice, it shall be deemed to have elected not to conduct the defense of the subject claim, and in such event the Indemnified Person”) desires Party shall have the right to make a conduct such defense in good faith and to compromise and settle the claim against any without prior consent of the Indemnifying Party and the Indemnifying Party will be liable for all costs, expenses, settlement amounts or other party (the “Indemnifying Person”) Losses paid or incurred in connection with any Losses for which therewith.
(b) In the event that the Indemnifying Party does elect to conduct the defense of the subject claim, the Indemnified Person Party will cooperate with and make available to the Indemnifying Party such assistance and materials as may seek indemnification hereunder in respect be reasonably requested by it, all at the expense of a claim or demand made by any Person not a party to this Agreement against the Indemnifying Party, and the Indemnified Person (a “Third-Party Claim”)shall have the right at its expense to participate in the defense assisted by counsel of its own choosing, such provided that the Indemnified Person must notify Party shall have the right to compromise and settle the claim only with the prior written consent of the Indemnifying Person in writingParty, which consent shall not be reasonably withheld or delayed. Without the prior written consent of the Third-Indemnified Party, the Indemnifying Party will not enter into any settlement of any Third Party Claim (a “Third-Party Claim Notice”) as promptly as reasonably possible after receiptor cease to defend against such claim, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice of the Third-Party Claim; provided, that failure if pursuant to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Person shall have been actually and materially prejudiced or as a result of such failure. Upon receipt settlement or cessation, (i) injunctive or other equitable relief would be imposed against the Indemnified Party or its Affiliates, or (ii) such settlement or cessation would lead to liability or create any financial or other obligation on the part of the Third-Indemnified Party Claim Notice from or its Affiliates for which the Indemnified PersonParty is not entitled to indemnification hereunder. The Indemnifying Party shall not be entitled to control, and the Indemnified Party shall be entitled to have sole control over, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume defense or participate in the defense settlement of any Third-claim to the extent that claim seeks an order, injunction or other equitable relief against the Indemnified Party Claim at which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party or its Affiliates (and the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the such defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the settlement and related expenses; provided, however, that upon rejection of any settlement and related expenses, the Indemnified Person shall assume control of the defense of such Third-Party Claim and the liability of the Indemnifying Person with respect to such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails to give notice of the assumption of the defense of any Third-Party Claim within constitute a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim Loss for which the Indemnifying Person Indemnified Party is otherwise obligated entitled to provide indemnification hereunder). The Indemnifying Person shall be entitled If a firm decision is made to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-settle a Third Party Claim, the Indemnified Person shall furnish which offer the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be Party is permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations settle under this Article 10 in connection with such Third-Party Claim.this
Appears in 1 contract
Indemnification Procedure for Third Party Claims. In the event that any Person entitled to indemnification under this Agreement (an "Indemnified Party") asserts a claim for indemnification or receives notice of the assertion of any claim or of the commencement of any action or proceeding by any Person who is not a party to this Agreement or an affiliate of a party to this Agreement (a "Third Party Claim") against such Indemnified Party, against which a party to this Agreement is required to provide indemnification under this Agreement (an "Indemnifying Party"), the Indemnified Party shall give written notice together with a statement of any available information regarding such claim to the Indemnifying Party within 5 business days after learning of such claim (or within such shorter time as may be necessary to give the Indemnifying Party a reasonable opportunity to respond to such claim). The Indemnifying Party shall have the right, upon written notice to the Indemnified Party (the "Defense Notice") within 5 business days after receipt from the Indemnified Party of notice of such claim, which notice by the Indemnifying Party shall specify the counsel it will appoint to defend such claim ("Defense Counsel"), to conduct at its expense the defense against such claim in its own name, or if necessary in the name of the Indemnified Party; provided, however, that the Indemnified Party shall have the right to approve the Defense Counsel, which approval shall not be unreasonably withheld or delayed, and in the event the Indemnifying Party and the Indemnified Party cannot agree upon such counsel within 10 days after the Defense Notice is provided, then the Indemnifying Party shall propose an alternate Defense Counsel, which shall be subject again to the Indemnified Party's approval which approval shall not be unreasonably withheld or delayed. If the parties still fail to agree on the Defense Counsel, then, at such time, the Indemnifying Party shall determine the Defense Counsel.
(a) In the event that the Indemnifying Party shall fail to give the Defense Notice within a thirty day period, it shall be deemed to have elected not to conduct the defense of the subject claim, and in such event the Indemnified Party shall have the right to conduct the defense and to compromise and settle the claim without prior consent of the Indemnifying Party.
(b) In the event that the Indemnifying Party does deliver a Defense Notice and thereby elects to conduct the defense of the subject claim, the Indemnifying Party shall be entitled to have the exclusive control over the defense and settlement of the subject claim and the Indemnified Party will cooperate with and make available to the Indemnifying Party such assistance and materials as it may reasonably request, all at the expense of the Indemnifying Party; the Indemnified Party shall have the right at its expense to participate in the defense assisted by counsel of its own choosing and at its sole expense. In such an event, the Indemnifying Party will not settle the subject claim without the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld or delayed.
(c) Without the prior written consent of the Indemnified Party, the Indemnifying Party will not enter into any party settlement of any Third Party Claim or cease to defend against such claim, if pursuant to or as a result of such settlement or cessation, (i) injunctive relief or specific performance would be imposed against the “Indemnified Person”Party, or (ii) desires such settlement or cessation would lead to make a claim against liability or create any financial or other party (obligation on the “Indemnifying Person”) in connection with any Losses part of the Indemnified Party for which the Indemnified Person Party is not entitled to indemnification hereunder.
(d) If an Indemnified Party refuses to consent to a bona fide offer of settlement which provides for a full release of the Indemnified Party and its affiliates, if parties, and solely for a monetary payment which the Indemnifying Party wishes to accept, the Indemnified Party may seek indemnification hereunder in respect continue to pursue such matter, free of any participation by the Indemnifying Party, at the sole expense of the Indemnified Party. In such an event, the obligation of the Indemnifying Party shall be limited to the amount of the offer of settlement which the Indemnified Party refused to accept plus the costs and expenses of the Indemnified Party incurred prior to the date the Indemnifying Party notified the Indemnified Party of the offer of settlement.
(e) Notwithstanding clause (b) above, the Indemnifying Party shall not be entitled to control, but may participate in, and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim (i) that seeks a claim temporary restraining order, a preliminary or demand made by any Person not a party to this Agreement permanent injunction or specific performance against the Indemnified Person Party, (ii) to the extent such claim involves criminal allegations against the Indemnified Party, (iii) that if unsuccessful, would set a “Third-precedent that would materially interfere with, or have a material adverse effect on, the business or financial condition of the Indemnified Party Claim”)or (iv) if such claim would impose liability on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder. In such an event, such Indemnified Person must notify the Indemnifying Person in writing, Party will still have all of its obligations hereunder provided that the Indemnified Party will not settle the subject claim without the prior written consent of the Third-Party Claim Indemnifying Party, which consent will not be unreasonably withheld or delayed.
(a “Third-Party Claim Notice”f) as promptly as reasonably possible after receiptAny final judgment entered or settlement agreed upon in the manner provided herein shall be binding upon all parties and, but if the dispute in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice question would impose liability on the part of the Third-Indemnifying Party Claim; providedunder this Article VIII, that shall conclusively be deemed to be an obligation with respect to which the Indemnified Party is entitled to prompt indemnification hereunder.
(g) A failure by an Indemnified Party to give a Third-Party Claim Notice on a timely basis shall timely, complete or accurate notice as provided in this Section 8.4 will not affect the indemnification provided rights or obligations of any party hereunder except and only to the extent the Indemnifying Person shall have been actually and materially prejudiced that, as a result of such failure. Upon receipt , any party entitled to receive such notice was deprived of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the its right to approve recover any payment under its applicable insurance coverage or reject the settlement was otherwise directly and related expenses; provided, however, that upon rejection of any settlement and related expenses, the Indemnified Person shall assume control of the defense materially damaged as a result of such Third-Party Claim and the liability of the Indemnifying Person with respect to such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails failure to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such timely notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party Claim.
Appears in 1 contract
Sources: Merger Agreement (Phillips Ian S)
Indemnification Procedure for Third Party Claims. In the event that, subsequent to the Closing, any person or entity entitled to indemnification under this Agreement (an “Indemnified Party”) receives notice of the assertion of any claim or of the commencement of any action or proceeding by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including, but not limited to any Governmental Authority) (a “Third Party Claim”) against such Indemnified Party, against which a party to this Agreement is required to provide indemnification under this Agreement (an “Indemnifying Party”), the Indemnified Party shall give written notice regarding such claim to the Indemnifying Party after learning of such claim. The Indemnifying Party shall have the right, upon written notice to the Indemnified Party (the “Defense Notice”) within fifteen (15) Business Days after receipt from the Indemnified Party of notice of such claim, which notice by the Indemnifying Party shall specify the counsel it will appoint to defend such claim (“Defense Counsel”), to conduct at its expense the defense against such claim in its own name, or if necessary in the name of the Indemnified Party; provided, however, that the Indemnified Party shall have the right to approve the Defense Counsel, which approval shall not be unreasonably withheld or delayed.
(a) In the event that any party the Indemnifying Party shall fail to give the Defense Notice within said 15-day period, it shall be deemed to have elected not to conduct the defense of the subject claim, and in such event the Indemnified Party shall have the right to conduct the defense in good faith and to compromise and settle the claim in good faith with the consent of the Indemnifying Party (which consent shall not be unreasonably withheld or delayed) and the “Indemnified Person”) desires to make a claim against any Indemnifying Party will be liable for all reasonable costs, expenses, settlement amounts or other party (the “Indemnifying Person”) Losses paid or incurred in connection therewith but only upon the terms and conditions of this Section 9; provided, however, that the Indemnified Party shall keep the Indemnifying Party informed of all material developments and events relating to such claim or proceeding.
(b) In the event that the Indemnifying Party does deliver a Defense Notice and thereby elects to conduct the defense of the subject claim, the Indemnifying Party shall be entitled to have the exclusive control over said defense settlement of the subject claim and the Indemnified Party will cooperate with and make available to the Indemnifying Party such assistance and materials as it may reasonably request, all at the expense of the Indemnifying Party, and the Indemnified Party shall have the right at its expense to participate in the defense assisted by counsel of its own choosing. (Any fees or costs incurred by the Indemnified Party while engaging in such participation shall not be included within the calculation of its Losses for purposes of its entitlement to indemnification under this Section 9.3). In such an event, the Indemnifying Party will not settle the subject claim without the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld.
(c) Without the prior written consent of the Indemnified Party which may be withheld for any Losses reason or no reason, the Indemnifying Party will not enter into any settlement of any Third Party Claim or cease to defend against such claim after assuming the defense of such claim, if pursuant to or as a result of such settlement or cessation, (i) injunctive relief or specific performance would be imposed against the Indemnified Party, or (ii) such settlement or cessation would lead to liability or create any financial or other obligation on the part of the Indemnified Party for which the Indemnified Person Party is not entitled to indemnification hereunder.
(d) Notwithstanding Section 9.3(b), the Indemnifying Party shall not be entitled to control, but may seek indemnification hereunder in respect participate in, and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim (i) that seeks a claim temporary restraining order, a preliminary or demand made by any Person not a party to this Agreement permanent injunction or specific performance against the Indemnified Person Party, (ii) that involves criminal allegations against the Indemnified Party, (iii) that if unsuccessful, would set a “Third-precedent that would materially interfere with, or have a material adverse effect on, the business or financial condition of the Indemnified Party, or (iv) that imposes liability on the part of the Indemnified Party Claim”)for which the Indemnified Party is not entitled to indemnification hereunder. In such an event, such Indemnified Person must notify the Indemnifying Person in writing, Party will still have all of its obligations hereunder provided that the Indemnified Party will not settle the subject claim without the prior written consent of the Third-Indemnifying Party, which consent will not be unreasonably withheld.
(e) A failure by an Indemnified Party Claim (a “Third-Party Claim Notice”) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice of the Third-Party Claim; provided, that failure to give a Third-Party Claim Notice on a timely basis shall timely, complete or accurate notice as provided in this Section 9.3 will not affect the indemnification provided rights or obligations of any party hereunder except and only to the extent the Indemnifying Person shall have been actually and materially prejudiced that, as a result of such failure. Upon receipt , any party entitled to receive such notice was deprived of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the its right to approve recover any payment under its applicable insurance coverage or reject the settlement was otherwise directly and related expenses; provided, however, that upon rejection of any settlement and related expenses, the Indemnified Person shall assume control of the defense materially damaged as a result of such Third-Party Claim and the liability of the Indemnifying Person with respect to such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails failure to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such timely notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party Claim.
Appears in 1 contract
Sources: Asset Purchase Agreement (Ebix Inc)
Indemnification Procedure for Third Party Claims. (a) In Other than a claim involving Taxes which procedure is set forth in, and which shall be governed exclusively by, Section 7.1, in the event that subsequent to the Closing, any party Person that is or may be entitled to indemnification under this Agreement (the an “Indemnified PersonParty”) desires to make a claim against receives notice of the assertion of any other party (claim, issuance of any order or the “Indemnifying Person”) in connection with commencement of any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim action or demand made proceeding by any Person who is not a party to this Agreement against the Indemnified Person Party or an Affiliate of a Party, including, without limitation, any domestic or foreign court or Governmental Authority (a “Third-Third Party Claim”), against such Indemnified Person must notify the Party and for which a Party is or may be required to provide indemnification under this Agreement (an “Indemnifying Person in writingParty”), such Indemnified Party shall give written notice thereof, together with a statement of the Third-any available information regarding such Third Party Claim to such Indemnifying Party, within thirty (a “Third-Party Claim Notice”30) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by learning of such Indemnified Person of notice of the Third-Third Party Claim; provided, that failure to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Person shall have been actually and materially prejudiced as a result of such failure. Upon receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the settlement and related expenses; provided, however, that upon rejection of failure to give such written notice within any settlement and related expenses, particular time period shall not adversely affect the Indemnified Person shall assume control of the defense of such Third-Party Claim Party’s right to indemnification except, and the liability of the Indemnifying Person with respect to such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, extent that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled Party can show that the failure to assume (but shall continue to be entitled to participate in) give such defense. The Indemnified Person may, at its option, continue notification on a timely basis directly and adversely affected the Indemnifying Party’s ability to defend such Third-Third Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder)Claim. The Indemnifying Person Party shall be entitled have the right upon written notice to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish Party (the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within “Defense Notice”), within fifteen (15) days after receipt from the giving Indemnified Party of notice of such noticeThird Party Claim, to conduct, at its expense, the defense against such Third Party Claim in its own name, or if necessary in the name of the Indemnified Person shall be permitted to effect such settlement unless Party. In the event that the Indemnifying Person (a) reimburses Party does not elect to conduct the defense of the subject Third Party Claim, then the Indemnified Person in accordance Party may conduct the defense of the subject Third Party Claim and the Indemnifying Party will cooperate with and make available to the terms of this Article 10 for all reasonable fees Indemnified Party such assistance and expenses incurred materials as may be reasonably requested by the Indemnified Person Party. In the event that the Indemnifying Party does elect to conduct the defense of the subject Third Party Claim, then the Indemnified Party will cooperate with and make available to the Indemnifying Party such assistance and materials as may be reasonably requested by it, and the Indemnified Party shall have the right to participate in connection the defense assisted by counsel of its own choosing. Without the prior written consent of the Indemnified Party, the Indemnifying Party will not enter into any settlement of any Third Party Claim or cease to defend against such Third Party Claim, if pursuant to or as a result of such settlement or cessation, (i) injunctive or other equitable relief would be imposed against the Indemnified Party, or (ii) each claimant or plaintiff in such Third Party Claim has not given to the Indemnified Party an unconditional release from all Liability with respect to such Third Party Claim; .
(b) assumes Notwithstanding anything contained in Section 8.5(a) to the contrary, the Indemnifying Party under this Section 8.5 shall not be entitled to control, and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any Third Party Claim if any of the following conditions are not satisfied:
(i) the Indemnifying Party shall acknowledge in writing that it shall be fully responsible for all Losses relating to such Third-proceeding, which acknowledgement is deemed given by the Sellers’ Representative in its capacity as representative to the Sellers;
(ii) the Indemnifying Party Claim; and must diligently defend such proceeding;
(ciii) takes such other actions as the Indemnifying Party must furnish the Indemnified Person may reasonably request as assurance Party with evidence that the financial resources of the Indemnifying PersonParty, in the Indemnified Party’s ability reasonable judgment, are and will be sufficient (when considering Losses in respect of all other outstanding claims) to fulfill its obligations satisfy any Losses relating to such proceeding;
(iv) such proceeding shall not involve criminal actions or allegations of criminal conduct by the Indemnifying Party or Indemnified Party, and shall not involve claims for specific performance or other equitable relief; and
(v) there does not exist, in the Indemnified Party’s good faith judgment, based on the advice of outside legal counsel, a conflict of interest which, under this Article 10 applicable principles of legal ethics, could reasonably be expected to prohibit a single legal counsel from representing both the Indemnified Party and the Indemnifying Party in connection with such Third-Party Claimproceeding.
Appears in 1 contract
Indemnification Procedure for Third Party Claims. (a) 8.3.1 In the event that any party person or entity entitled to indemnification under this Agreement (an "Indemnified Party") receives notice of the “Indemnified Person”) desires to make a claim against assertion of any other party (claim, issuance of any order or the “Indemnifying Person”) in connection with commencement of any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim action or demand made proceeding by any Person person who is not a party to this Agreement or an Affiliate of a party, including, without limitation, any domestic or foreign court or Governmental Authority (a "Third Party Claim"), against such Indemnified Party, against which a party to this Agreement is required to provide indemnification under this Agreement (an "Indemnifying Party"), the Indemnified Person (Party shall give written notice thereof together with a “Third-Party Claim”), statement of any available information regarding such Indemnified Person must notify claim to the Indemnifying Person in writing, of the Third-Party Claim within thirty (a “Third-Party Claim Notice”30) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receiptlearning of such claim (or within such shorter time as may be necessary, by in the Indemnified Party's reasonable judgment, to give the Indemnifying Party a reasonable opportunity to respond to and defend such Indemnified Person of notice of the Third-Party Claimclaim); provided, however, that the failure to give a Third-Party Claim Notice on a timely basis such notice shall not affect the indemnification provided right to indemnity hereunder except to the extent the Indemnifying Person Party is prejudiced by such delay. The Indemnifying Party shall have been actually and materially prejudiced as a result of such failure. Upon the right, upon written notice to the Indemnified Party (the "Defense Notice") within thirty (30) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s electionParty of notice of such claim, to assume conduct at its expense the defense against such claim in its own name, or participate if necessary in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense name of the Third-Party ClaimIndemnified Party; provided, the Indemnifying Person shall give however, that the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person Party shall have the right to approve the defense counsel selected by the Indemnifying Party, which approval shall not be unreasonably withheld, and in the event the Indemnifying Party and the Indemnified Party cannot agree upon such counsel within ten (10) days after the Defense Notice is provided, then the Indemnifying Party shall propose an alternate defense counsel, who shall be subject again to the Indemnified Party's approval.
8.3.2 In the event that the Indemnifying Party shall fail to timely give the Defense Notice, it shall be deemed to have elected not to conduct the defense of the subject claim, and in such event the Indemnified Party shall have the right to conduct such defense in good faith and to compromise and settle the claim only with the prior consent of the Indemnifying Party (which consent shall not be unreasonably withheld or reject delayed) and the Indemnifying Party will be liable for all costs, expenses, settlement amounts or other Losses paid or incurred in connection therewith.
8.3.3 In the event that the Indemnifying Party does elect to conduct the defense of the subject claim, the Indemnified Party will cooperate with and related expensesmake available to the Indemnifying Party such assistance and materials as may be reasonably requested by it, all at the expense of the Indemnifying Party, and the Indemnified Party shall have the right at its expense to participate in the defense assisted by counsel of its own choosing, provided that the Indemnified Party shall have the right to compromise and settle the claim only with the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed. Without the prior written consent of the Indemnified Party, the Indemnifying Party will not enter into any settlement of any Third Party Claim or cease to defend against such claim, if pursuant to or as a result of such settlement or cessation, (i) injunctive or other equitable relief would be imposed against the Indemnified Party, or (ii) such settlement or cessation would lead to liability or create any financial or other obligation on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder, or (iii) such settlement includes a written admission of guilt. The Indemnifying Party shall not be entitled to control, and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim (A) to the extent that claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party or (B) in a proceeding to which the Indemnifying Party is also a party and the Indemnified Party determines in good faith that joint representation would be inappropriate (and in each case the cost of such defense shall constitute an amount for which the Indemnified Party is entitled to indemnification hereunder); provided, however, that the Indemnifying Party shall have the right to settle such claim only with the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed. If an offer is made to settle a Third Party Claim which all parties to such Third Party Claim (including the Indemnifying Party) are prepared to settle and which offer the Indemnifying Party is permitted to settle under this Section 8.3.2 only upon rejection the prior written consent of any settlement and related expensesthe Indemnified Party, ------------- the Indemnifying Party will give prompt written notice to the Indemnified Party to that effect. If the Indemnified Party fails to consent to such firm offer within (30) calendar days after its receipt of such notice, the Indemnified Person shall assume control of the defense of such Third-Party Claim and the liability of the Indemnifying Person with respect to such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall may continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to contest or defend such Third-Third Party Claim and, in such event, the maximum liability of the Indemnifying Person shall indemnify Party as to such Third Party Claim will not exceed the Indemnified Person for all reasonable fees amount of such settlement offer, plus costs and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses paid or incurred by the Indemnified Person in connection with such Claim; (b) assumes Party through the defense end of such Third-Party Claim; (30) day period.
8.3.4 Any judgment entered, order issued or settlement agreed upon in the manner provided herein shall be binding upon the Indemnifying Party, and (c) takes such other actions as shall conclusively be deemed to be an obligation with respect to which the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability Party is entitled to fulfill its obligations under this Article 10 in connection with such Third-Party Claimprompt indemnification hereunder.
Appears in 1 contract
Sources: Stock Purchase Agreement (Compass International Services Corp)
Indemnification Procedure for Third Party Claims. (a) In the event that any claim or demand, or other circumstance or state of facts which could give rise to any claim or demand, for which a Company Indemnifying Party may be liable to a Buyer Indemnitee hereunder is asserted or sought to be collected by a third party (the “Indemnified Person”) desires to make a claim against any other party (the “Indemnifying Person”) in connection with any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim or demand made by any Person not a party to this Agreement against the Indemnified Person (a “Third-Third Party Claim”), the Buyer Indemnitee shall as soon as practicable deliver to the Shareholders’ Representative and the Escrow Agent a Notice of Claim with respect to such Indemnified Person must notify Third Party Claim. The Notice of Claim shall (i) specify in reasonable detail the Indemnifying Person in writingbasis for such claim and (ii) to the extent known by the Buyer Indemnitee, set forth a reasonable estimate of the Third-Party amount to which such Buyer Indemnitee claims to be entitled hereunder. The Buyer Indemnitee shall enclose with the Notice of Claim (a “Third-Party Claim Notice”) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by copy of all papers served with respect to such Indemnified Person of notice of the Third-Third Party Claim; provided, that failure if any, and any other material documents evidencing such Third Party Claim. Notwithstanding the foregoing, no delay or deficiency on the part of a Buyer Indemnitee in so notifying the Shareholders’ Representative will limit any Buyer Indemnitee’s right to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder under this Article X (except to the extent the Indemnifying Person shall have been actually and (i) such failure materially prejudiced as a result of such failure. Upon receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the settlement and related expenses; provided, however, that upon rejection of any settlement and related expenses, the Indemnified Person shall assume control of prejudices the defense of such Third-proceeding or (ii) the survival period by which notice of such Third Party Claim and the liability of the Indemnifying Person with respect to such Third-Party Claim shall must be limited to the amount or the monetary equivalent of the rejected settlement and related expensesprovided has already expired as set forth in 10.1 above).
(b) The Indemnified Person shall retain Shareholders’ Representative will have thirty (30) days from the right date on which the Shareholders’ Representative received the Notice of Claim to employ its own counsel and notify the Buyer Indemnitee that the Shareholders’ Representative (on behalf of the Company Indemnifying Parties) desires to discuss matters with the Indemnifying Person related to assume the defense or prosecution of such Third Party Claim and any Third-Party Claim, litigation resulting therefrom with counsel of its choice and at the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear sole cost and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions expense of the Company Indemnifying Person shall be final Parties if it acknowledges in writing the Company Indemnifying Parties’ responsibility for indemnification of the Buyer Indemnitees of such Third Party Claim in its entirety under this Article X (a “Third Party Defense”). If the Shareholders’ Representative assumes the Third Party Defense in accordance herewith, (i) the Buyer Indemnitee may retain separate co-counsel at its sole cost and the Indemnified Person shall cooperate with the Indemnifying Person in all respects expense and participate in the defense of the Third-Third Party ClaimClaim but the Shareholders’ Representative shall control the investigation, including refraining from taking defense and settlement thereof, (ii) the Buyer Indemnitee will not file any position adverse papers or consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Shareholders’ Representative (which shall not be unreasonably withheld or delayed, provided that it shall be reasonable for the Shareholders’ Representative to withhold such consent if the settlement involves any (i) admission of liability by any Company Indemnifying PersonParty, (ii) a requirement of any Company Indemnifying Party to take, or refrain from taking, any action, (iii) the Company Indemnifying Parties to pay any amount of money) and (iii) the Shareholders’ Representative will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Buyer Indemnitee (which shall not be unreasonably withheld or delayed, provided that it shall be reasonable for the Buyer Indemnitee to withhold such consent if the settlement involves any (i) admission of liability by Company, Buyer or its Affiliates, (ii) a requirement of the Company, Buyer or its Affiliates to take, or refrain from taking, any action, (iii) the Company, Buyer or its Affiliates to pay any amount of money (for which it is not indemnified by the Company Indemnified Parties in full for). The Parties will act in good faith in responding to, defending against, settling or otherwise dealing with such claims. The Parties will also cooperate in any such defense and give each other reasonable access to all information relevant thereto to the extent permitted by applicable Law or applicable contractual restrictions, subject to entering into appropriate confidentiality agreements.
(c) If the Indemnifying Person fails to give notice Shareholders’ Representative does not assume the Third Party Defense within thirty (30) days of receipt of the assumption Notice of Claim, the Buyer Indemnitee will be entitled to assume the Third Party Defense (at its expense or, if it is ultimately determined that the Buyer Indemnitee is entitled to indemnification pursuant to Section 10.2, at the expense of the Company Indemnifying Parties) upon delivery of notice to such effect to the Shareholders’ Representative; provided that the Shareholders’ Representative shall have the right to participate in the Third Party Defense at the sole cost and expense of the Company Indemnifying Parties, but the Buyer Indemnitee shall control the investigation, defense and settlement thereof. Buyer Indemnitees shall use commercially reasonable efforts to keep the Shareholders’ Representative informed of material developments and events relating to such claim or legal proceeding, including receiving copies of all pleadings, notices and communications with respect to the Third Party Claim to the extent that receipt of such documents does not affect any privilege relating to any Buyer Indemnitee. Failure to provide such information shall not constitute a breach of this provision, unless such failure causes harm to the Company Indemnifying Parties. Buyer Indemnitee will not consent to the entry for any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Shareholders’ Representative, which shall not be unreasonably withheld or delayed.
(d) Notwithstanding the foregoing, in no event may the Shareholders’ Representative assume, maintain control of, or participate in, the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five proceeding (45i) days after receipt involving anticipated Losses in excess of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense value of any Third-Party Claim remaining Escrow Amount (which, for the defense avoidance of which it does not assume. Prior doubt, is after giving effect to effectuating any settlement of such Third-Party Claimunresolved claims against the Escrow Amount), (ii) involving criminal liability on the Indemnified Person shall furnish the Indemnifying Person with written notice part of any proposed settlement Buyer Indemnitee, or (iii) in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such which any relief other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party Claimthan monetary damages is sought against a Buyer Indemnitee.
Appears in 1 contract
Sources: Merger Agreement (MeetMe, Inc.)
Indemnification Procedure for Third Party Claims. (ai) In the event that subsequent to the Closing any party Person entitled to indemnification under this Agreement (the an “Indemnified PersonParty”) desires to make asserts a claim against for indemnification or receives notice of the assertion of any other party (the “Indemnifying Person”) in connection with any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim or demand made of the commencement of any action or Proceeding by any Person who is not a party to this Agreement against the Indemnified Person or an Affiliate of a party to this Agreement (including any Governmental Body) (a “Third-Third Party Claim”) against such Indemnified Party, against which a party to this Agreement is required to provide indemnification under this Agreement (an “Indemnifying Party”), the Indemnified Party shall give written notice of such Indemnified Person must notify claim to the Indemnifying Person in writing, Party within thirty (30) days after learning of such claim (the Third-Party Claim (a “Third-Party Claim Notice”). The Indemnifying Party shall have the right, upon written notice to the Indemnified Party (the “Defense Notice”) as promptly as reasonably possible after receipt, but in no event later than fifteen within thirty (1530) calendar days after receipt, by such receipt from the Indemnified Person of notice Party of the Third-Claim Notice, which Defense Notice shall specify the counsel the Indemnifying Party Claimwill appoint to defend such claim (“Defense Counsel”), to conduct at its expense the defense against such claim in its own name, or, if necessary, in the name of the Indemnified Party; provided, however, that failure to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Person shall have been actually and materially prejudiced as a result of such failure. Upon receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve the Defense Counsel, and in the event the Indemnifying Party and the Indemnified Party cannot agree upon such counsel within ten (10) days after the Defense Notice is provided, then the Indemnifying Party shall propose an alternate Defense Counsel, which shall be subject again to the Indemnified Party’s approval (and such process shall be repeated until the Indemnified Party shall have approve the Defense Counsel specified by the Indemnifying Party.) If the Indemnifying Party delivers a Defense Notice, the delivery of such Defense Notice shall constitute acceptance of responsibility for such claim or reject action and the Indemnifying Party shall be fully responsible for all liabilities arising out of or relating to such claim or action including the costs of the defense thereof. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume control of a Third Party Claim and shall pay the reasonable fees and expenses of counsel retained by the Indemnified Party if (x) the Third Party Claim solely seeks injunctive or other equitable relief, (y) the Indemnified Party has been advised by counsel that the Indemnified Party’s interests in the Third Party Claim is or can reasonably be expected to be adverse to the interests of the Indemnifying Party and provides written notice of such determination to the Indemnifying Party, or (z) such Indemnifying Party is unable to or does not provide the Indemnified Party with reasonable assurance of its ability to pay the expenses of the defense against such Third Party Claim. Notwithstanding anything to the contrary in this Section 9.2(d), in the event that any Third Party Claim relates to Taxes, Section 9.4(g) (and not this Section 9.2(d)) shall apply.
(ii) In the event that the Indemnifying Party shall fail to give the Defense Notice within the time period described above, it shall be deemed to have elected not to conduct the defense of the subject claim, and in such event the Indemnified Party shall have the right to conduct such defense in good faith and to compromise and settle the claim in good faith subject to the consent of the Indemnifying Party (which consent will not be unreasonably withheld) and such Indemnifying Party will be liable for all costs, expenses, settlement amounts or other Losses actually paid or incurred in connection therewith. If the Indemnifying Party is not entitled to assume the defense of a Third Party Claim because of reasons set forth in the last sentence of the preceding paragraph, the Indemnified Party may not settle the Third Party Claim without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed, if such settlement would lead to any liability or create any other obligation of the Indemnifying Party.
(iii) In the event that the Indemnifying Party does deliver a Defense Notice within the time period described above and related expensesthereby elects to conduct the defense of the subject claim, the Indemnifying Party shall diligently conduct such defense and the Indemnified Party will cooperate with and make available to the Indemnifying Party such assistance and materials as it may reasonably request, all at the expense of the Indemnifying Party, and the Indemnified Party shall have the right at its expense to participate in the defense assisted by counsel of its own choosing.
(iv) The Indemnifying Party may enter into any settlement of any Third Party Claim; provided, however, that upon rejection of any settlement and related expenses, the Indemnified Person shall assume control of the defense of such Third-Party Claim and the liability of the Indemnifying Person with respect to such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period may not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating enter into any settlement of such Third-any Third Party Claim, Claim without the prior written consent of the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time Party if pursuant to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving or as a result of such noticesettlement, (A) injunctive or other equitable relief would be imposed against the Indemnified Person shall be permitted to effect Party, or (B) such settlement unless would or could reasonably be expected to lead to any liability or create any financial or other obligation on the Indemnifying Person (a) reimburses part of the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party ClaimParty.
Appears in 1 contract
Sources: Membership Interests Purchase Agreement (Dolan Media CO)
Indemnification Procedure for Third Party Claims. (a) In the event that any claim or demand, or other circumstance or state of facts which could give rise to any claim or demand, for which an indemnifying party under this Article X (an “Indemnitor”) may be liable to any indemnified party under this Article X (an “Indemnitee”) is asserted or sought to be collected by a third party (the “Indemnified Person”) desires to make a claim against any other party (the “Indemnifying Person”) in connection with any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim or demand made by any Person not a party to this Agreement against the Indemnified Person (a “Third-Third Party Claim”), such Indemnified Person must notify the Indemnifying Person in writing, of the Third-Party Claim (a “Third-Party Claim Notice”) Indemnitee shall as promptly soon as reasonably possible after receipt, practicable (but in no event not later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice of the Third-Party Claim; provided, that failure to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Person shall have been actually and materially prejudiced as a result of such failure. Upon receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and days following receipt of such claim or demand) notify the Indemnified Person shall have the right to approve or reject the settlement and related expenses; Indemnitor in writing of such Third Party Claim (“Notice of Claim”) provided, however, that upon rejection no delay on the part of any settlement Indemnitee in notifying any Indemnitor shall relieve the Indemnitor from any obligation hereunder unless (and related expensesthen solely to the extent) the Indemnitor thereby is materially prejudiced. The Notice of Claim shall (i) state that the Indemnitee has paid or properly accrued Losses or anticipates that it will incur liability for Losses for which such Indemnitee is entitled to indemnification pursuant to this Agreement, and (ii) specify in reasonable detail each individual item of Loss included in the amount so stated, the Indemnified Person shall assume control date such item was paid or, if applicable, accrued, the basis for any anticipated liability and the nature of the defense misrepresentation, breach of warranty, breach of covenant or claim to which each such Third-Party Claim item is related and the liability computation of the Indemnifying Person amount to which such Indemnitee claims to be entitled hereunder. The Indemnitee shall enclose with the Notice of Claim a copy of all papers served with respect to such Third-Third Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement Claim, if any, and related expensesany other documents evidencing such Third Party Claim.
(b) The Indemnified Person shall retain Indemnitor will have thirty (30) days from the right date on which the Indemnitor received the Notice of Claim to employ notify the Indemnitee that the Indemnitor desires to assume the defense or prosecution of such Third Party Claim and any litigation resulting therefrom with counsel of its own counsel and to discuss matters with the Indemnifying Person related choice (but reasonably satisfactory to the defense of any ThirdIndemnitees) and at its sole cost and expense (a “Third Party Defense”). If the Indemnitor assumes the Third Party Defense in accordance herewith, (i) the Indemnitee may retain separate co-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear counsel at its sole cost and shall be solely responsible for its own costs expense and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects participate in the defense of the Third-Third Party ClaimClaim but the Indemnitor shall control the investigation, including refraining from taking defense and settlement thereof, (ii) the Indemnitee will not file any position adverse papers or consent to the Indemnifying Personentry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnitor (not to be unreasonably withheld or delayed) and (iii) the Indemnitor will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnitee (not to be unreasonably withheld or delayed); provided, that notwithstanding the foregoing, the Indemnitee shall be entitled to withhold its consent, in its sole discretion, to any proposed judgment or settlement that does not include a provision whereby the plaintiff or claimant in the matter releases the Indemnitee from all Liability and obligation with respect thereto. The parties will act in good faith in responding to, defending against, settling or otherwise dealing with such claims. The parties will also cooperate in any such defense and give each other reasonable access to all information relevant thereto. Whether or not the Indemnitor has assumed the Third Party Defense, such Indemnitor will not be obligated to indemnify the Indemnitee hereunder for any settlement entered into or any judgment that was consented to without the Indemnitor’s prior written consent (not to be unreasonably withheld or delayed).
(c) If the Indemnifying Person fails to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it Indemnitor does not assume. Prior to effectuating any settlement of such Third-assume the Third Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within Defense within fifteen (15) days after of receipt of the giving Notice of Claim, or if (i) the Indemnitor and the Indemnitees so mutually agree; (ii) the Indemnitees shall have reasonably concluded that there may be legal defenses available to them that are different from or in addition to those available to the Indemnitor; (iii) the named parties in any such noticeproceeding (including any impleaded parties) include both the Indemnitor and the Indemnitee and representation of both sets of parties by the same counsel would be inappropriate due to actual or potential conflicts of interest between them; or (iv) the Indemnifying Party fails to actively and diligently pursue the defense thereof, the Indemnified Person shall Indemnitee will be permitted entitled to effect such settlement unless assume the Indemnifying Person Third Party Defense, at its sole cost and expense (a) reimburses or, if the Indemnified Person Indemnitee incurs a Loss with respect to the matter in accordance with question for which the terms of this Article 10 for all reasonable fees and expenses incurred by Indemnitee is entitled to indemnification pursuant to Section 10.2 or 10.3, as applicable, at the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance expense of the Indemnifying Person’s ability Indemnitor) upon delivery of notice to fulfill such effect to the Indemnitor; provided that the Indemnitor shall have the right to participate in the Third Party Defense at its obligations under this Article 10 in connection with such Third-Party Claimsole cost and expense, but the Indemnitee shall control the investigation, defense and settlement thereof.
Appears in 1 contract
Indemnification Procedure for Third Party Claims. (a) In the event that any party (the “Indemnified Person”) desires to make a claim against any other party (the “Indemnifying Person”) in connection with any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim or demand made for which an Indemnitor may be liable to an Indemnitee hereunder is asserted by any Person not a third party to this Agreement against the Indemnified Person (a “Third-Third Party Claim”), such Indemnified Person must the Indemnitee shall promptly notify the Indemnifying Person Indemnitor in writing, writing of the Third-such Third Party Claim (such notice, a “Third-Party Claim Notice”) as promptly as reasonably possible after receipt), but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice of the Third-Party Claim; provided, that failure to give a Third-Party Claim Notice on a timely basis shall so notify the Indemnitor will not affect relieve the indemnification provided hereunder Indemnitor of any liability that it may have to the Indemnitee, except to the extent that the Indemnifying Person Indemnitor demonstrates that the defense of such action is prejudiced by the Indemnitee’s failure to give such notice. The Claim Notice shall (i) state that the Indemnitee has paid or properly accrued Losses or anticipates that it will incur liability for Losses for which such Indemnitee is entitled to indemnification pursuant to this Agreement, and (ii) specify in reasonable detail each individual item of Loss included in the amount so stated, the date such item was paid or properly accrued, the basis for any anticipated liability and the nature of the breach of representation, warranty, covenant or agreement to which each such item is related and the computation of the amount to which such Indemnitee claims to be entitled hereunder. The Indemnitee shall enclose with the Claim Notice a copy of all papers served with respect to such Third Party Claim, if any, and any other documents evidencing such Third Party Claim. For purposes of this Section 11.4, any Tax Controversy will be treated as a Third Party Claim.
(b) Subject to the provisions set forth in Section 8.4(j), the Indemnitor shall have been actually and materially prejudiced as a result 30 days from the date on which the Indemnitor received the Claim Notice to notify the Indemnitee that the Indemnitor desires to assume the defense or prosecution of such failure. Upon receipt of the Third-Third Party Claim Notice from the Indemnified Person, the Indemnifying Person and any litigation resulting therefrom with counsel of its choice (which counsel shall be entitled, reasonably acceptable to Purchaser) and at its sole cost and expense. If the Indemnifying Person’s election, to assume or Indemnitor assumes the defense of such claim in accordance herewith: (i) the Indemnitee may retain separate co-counsel at its sole cost and expense and participate in the defense of such Third Party Claim, but the Indemnitor shall control the investigation, defense and settlement thereof; (ii) the Indemnitee shall not file any Third-papers or consent to the entry of any judgment or enter into any settlement with respect to such Third Party Claim at without the cost prior written consent of Indemnifying Personthe Indemnitor; and (iii) the Indemnitor shall not consent to the entry of any judgment or enter into any settlement with respect to such Third Party Claim to the extent such judgment or settlement provides for equitable relief without the prior written consent of the Indemnitee. In The parties shall use commercially reasonable efforts to minimize Losses from Third Party Claims, act in good faith in responding to, defending against, settling or otherwise dealing with such claims, and cooperate in any case in which such defense and give each other reasonable access to all information relevant thereto. Whether or not the Indemnifying Person assumes Indemnitor has assumed the defense of the Third-such Third Party Claim, the Indemnifying Person shall give Indemnitor will not be obligated to indemnify the Indemnified Person ten (10) calendar days’ notice prior Indemnitee hereunder with respect to executing any settlement agreement entered into or any judgment consented to without the Indemnitor’s prior written consent.
(c) Subject to the provisions of Section 8.4(j), if the Indemnitor does not assume the defense of such Third Party Claim within 30 days of receipt of the Claim Notice, the Indemnitee will be entitled to assume such defense, at its sole cost and expense (or, if the Indemnified Person shall have Indemnitee incurs a Loss with respect to the right matter in question for which the Indemnitee is entitled to approve indemnification pursuant to Section 11.2 or reject 11.3, as applicable, at the settlement and related expensesexpense of the Indemnitor), upon delivery of notice to such effect to the Indemnitor; provided, however, that upon rejection the Indemnitor (i) shall have the right to participate in the defense of such Third Party Claim at its sole cost and expense, but the Indemnitee shall control the investigation, defense and settlement thereof; (ii) may at any settlement time thereafter assume the defense of such Third Party Claim, in which event the Indemnitor shall bear the reasonable fees, costs and related expenses, expenses of the Indemnified Person shall assume control Indemnitee’s counsel incurred prior to the assumption by the Indemnitor of the defense of such Third-Party Claim and the liability of the Indemnifying Person with respect to such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Third Party Claim; and (ciii) takes such other actions as shall not be obligated to indemnify the Indemnified Person may reasonably request as assurance Indemnitee hereunder for any settlement entered into or any judgment consented to without the Indemnitor’s prior written consent.
(d) Notwithstanding any provisions in this Agreement to the contrary, if there is a conflict between the provisions of this Section 11.4 and the Indemnifying Person’s ability to fulfill its obligations under this Article 10 provisions of Section 8.4(j), the provisions set forth in connection with such Third-Party ClaimSection 8.4(j) shall control.
Appears in 1 contract
Indemnification Procedure for Third Party Claims. (a) In the event that an Indemnitee receives notice of the assertion of any claim or the commencement of any Action by a third party (the “Indemnified Person”) desires to make a claim against any other party (the “Indemnifying Person”) in connection with any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim or demand made by any Person not a party to which indemnity may be sought under the provisions of this Agreement against the Indemnified Person Article X (a “Third-Third Party Claim”), such Indemnified Person must the Indemnitee shall notify the Indemnifying Person Indemnitor in writing, writing of the Third-such Third Party Claim (such notice, a “Third-Notice of Claim”); provided that the failure or delay in notifying the Indemnitor of such Third Party Claim Notice”will not relieve the Indemnitor of any Liability it may have to the Indemnitee, except and only to the extent that the Indemnitor can demonstrate that such failure or delay caused actual prejudice to the Indemnitor with respect to such Third Party Claim.
(b) as promptly as reasonably possible after receiptAs to any such Third Party Claim, but in no event later than the Indemnitor will have fifteen (15) calendar days after receipt, by from the date on which the Indemnitor receives the Notice of Claim (the “Indemnitor Defense Review Period”) to notify the Indemnitee that the Indemnitor desires to assume the defense or prosecution of such Indemnified Person of notice of the Third-Party Claim; provided, that failure to give a Third-Third Party Claim Notice on and any litigation resulting therefrom (a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Person shall have been actually and materially prejudiced as a result of such failure. Upon receipt of the Third-“Third Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the settlement and related expensesDefense”); provided, however, that upon rejection of any settlement and related expenses, in the Indemnified Person shall assume control of the defense of event that such Third-Third Party Claim is asserted or commenced against any Buyer Indemnitee and relates to Tax the liability of the Indemnifying Person with respect to such Third-Party Claim Buyer Indemnitee shall be limited to the amount or the monetary equivalent of the rejected settlement and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person entitled in all respects to control the defense. If the Indemnitor assumes the Third Party Defense in accordance herewith, (i) the Indemnitee may retain separate co-counsel (but the fees and expenses of such counsel shall not be at the expense of the Indemnitor unless the employment of such counsel has been specifically authorized in writing by the Indemnitor) and participate in the defense of the Third-Third Party Claim, including refraining from taking any position adverse but the Indemnitor shall control the defense thereof; (ii) the Indemnitor will not consent to the Indemnifying Personentry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnitee which consent shall not be unreasonably withheld; (iii) the Indemnitor shall be conclusively deemed to have acknowledged that the Third Party Claim is within the scope of its indemnity obligation under this Agreement; (iv) the Indemnitor shall conduct the Third Party Defense actively and diligently and provide reasonable updates in connection with the Third Party Defense to the Indemnitee; and (v) the Indemnitee will provide reasonable cooperation in the Third Party Defense. Notwithstanding the foregoing, if counsel for the Indemnitee reasonably determines that there is a conflict between the positions of the Indemnitor and the Indemnitee in conducting the defense of such Action or that there are legal defenses available to such Indemnitee different from or in addition to those available to the Indemnitor, then counsel for the Indemnitee shall be entitled, if the Indemnitee so elects, to conduct the defense to the extent reasonably determined by such counsel to protect the interests of the Indemnitee, at the expense of the Indemnitor.
(c) If the Indemnifying Person fails Indemnitor does not assume the Third Party Defense prior to give notice the end of the assumption Indemnitor Defense Review Period, the Indemnitee shall have the right to assume the Third Party Defense; provided, however, that the Indemnitor shall have the right, at its expense, to participate in such Third Party Defense but the Indemnitee shall control the investigation, defense and settlement thereof. The Indemnitee shall conduct the Third Party Defense actively and diligently, and the Indemnitor will provide reasonable cooperation in the Third Party Defense. The Indemnitee shall not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim in any manner without the consent of the defense of any Third-Party Claim within a reasonable time period Indemnitor which consent shall not to exceed forty-five be unreasonably withheld or delayed.
(45d) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer The Indemnitor will not be entitled to assume the Third Party Defense if:
(but shall continue to be entitled to participate ini) such defense. The Indemnified Person may, at its option, continue to defend such Third-the Third Party Claim andseeks, in such eventaddition to or in lieu of monetary damages, any injunctive or other equitable relief;
(ii) the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Third Party Claim for which the Indemnifying Person is otherwise obligated relates to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person or arises in connection with such Claim; any criminal Action, indictment or allegation;
(biii) assumes the defense Indemnitor fails to provide reasonable assurance to the Indemnitee of such Third-its financial capacity to prosecute the Third Party Claim; and Defense or the maximum foreseeable damages or amount that may be claimed exceeds the applicable escrow amount;
(civ) takes such other actions as the Indemnified Person may reasonably request as assurance of Third Party Claim could give rise to Losses which are more than the Indemnifying Person’s ability amount indemnifiable by the Indemnitor pursuant to fulfill its obligations under this Article 10 X; or
(v) in connection with such Third-the case where the Indemnitee is Buyer Indemnitee, the Third Party ClaimClaim relates to Taxes.
Appears in 1 contract
Indemnification Procedure for Third Party Claims. (a) In the event that any party Person entitled to indemnification under this Agreement (the an “Indemnified PersonParty”) desires to make a claim against receives notice of the assertion of any other party (the “Indemnifying Person”) in connection with any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim or demand made of the commencement of any action or proceeding by any Person who is not a party Party to this Agreement against the Indemnified Person or an Affiliate of a Party to this Agreement (a “Third-Third Party Claim”) against such Indemnified Party, with respect to which a Party to this Agreement is or may be required to provide indemnification under this Agreement (an “Indemnifying Party”), such the Indemnified Person must notify Party shall give written notice to the Indemnifying Person in writing, of the Third-Party Claim (a “Third-Party Claim Notice”) as promptly as reasonably possible practicable after receiptlearning of such claim, but and in no event later longer than fifteen (15) calendar days. Subject to Section 7.5(d), the Indemnifying Party shall have the right, upon written notice to the Indemnified Party (the “Defense Notice”) within twenty (20) days after receipt, by such receipt from the Indemnified Person Party of notice of the Third-Party Claim; providedsuch claim, that failure to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Person shall have been actually and materially prejudiced as a result of such failure. Upon receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the settlement and related expenses; provided, however, that upon rejection of any settlement and related expenses, the Indemnified Person shall assume control of the defense of such Third-Party Claim and the liability of the Indemnifying Person with respect to such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant Party shall specify the counsel it will appoint to Section 10.3(a) defend such claim (“Defense Counsel”), to conduct at its expense the defense against such claim in its own name, or if necessary in the name of this Agreement, but the Indemnified Person shall bear and Party, which such counsel shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject reasonably acceptable to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails to give notice of the Party. The assumption of the defense of any Third-Third Party Claim within a reasonable time period by the Indemnifying Party shall not constitute an admission of responsibility to indemnify the Indemnified Party.
(b) In the event that the Indemnifying Party shall fail to give the Defense Notice, it shall be deemed to have elected not to exceed forty-five (45) days after receipt conduct the defense of the Third-subject Third Party Claim Notice from Claim, and in such event the Indemnified Person, Party shall have the Indemnifying Person shall no longer be entitled right to assume (but shall continue to be entitled to participate in) conduct such defense. The Indemnified Person mayParty may not settle such claim without the written consent of the Indemnifying Party, at its optionwhich consent shall not be unreasonably withheld, continue conditioned or delayed.
(c) Subject to defend such Third-Party Claim andSection 7.5(d), in such eventthe event that the Indemnifying Party does deliver a Defense Notice and thereby elects to conduct the defense of the subject Third Party Claim, the Indemnifying Person Party shall indemnify have the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated right to provide indemnification hereunder)conduct such defense. The Indemnifying Person Party may not settle such claim without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed. The Indemnified Party will cooperate with and make available to the Indemnifying Party such assistance and materials as it may reasonably request, all at the expense of the Indemnifying Party, and the Indemnified Party shall have the right at its expense to monitor the defense assisted by counsel of its own choosing, provided that the Indemnified Party shall have the right to compromise and settle the claim only with the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed.
(d) The Indemnifying Party shall not be entitled to control, and the Indemnified Party shall be entitled to participate at its own expense and with its own counsel in have sole control over, the defense or settlement of any Thirdclaim if (i) the claim for indemnification is with respect to a criminal or quasi-criminal proceeding, action, indictment, allegation or investigation, (ii) the Indemnified Party Claim has been advised by counsel that a reasonable likelihood exists of a conflict of interest between the defense Indemnifying Party and the Indemnified Party, (iii) the third party asserting such claim is a supplier, vendor, employee, client or customer of the Business or the Indemnified Party or any of its Affiliates, (iv) the Indemnifying Party has failed or is failing to vigorously prosecute or defend such claim, (v) the Indemnified Party reasonably believes that the amount of the claim exceeds either (A) the amount that the Indemnifying Party is obligated to indemnify the Indemnified Party for pursuant to this Agreement or (B) the remaining amount of the Holdback Amount (if the Indemnifying Party is Seller, any of the Seller Principals or ▇▇. ▇▇▇▇▇▇), (vi) the Indemnified Party reasonably believes that, if successful, the claim would set a precedent that would materially interfere with, or have a material effect on, the business, business relationships or financial condition of the Indemnified Party or its Affiliates, (vii) the claim is with respect to Taxes or Intellectual Property, or (viii) the claim seeks an injunction or other equitable relief against the Indemnified Party or any of its Affiliates; provided, that the Indemnified Party shall have the right to settle the claim only with the prior written consent of the Indemnifying Party, which it does consent shall not assumebe unreasonably withheld, conditioned or delayed; provided, further, however, that, if the Indemnifying Party is Seller, any of the Seller Principals or ▇▇. Prior to effectuating any settlement of such Third-Party Claim▇▇▇▇▇▇, the Indemnified Person Party shall furnish have the right to settle any claim (1) that alleges Infringement or that is primarily related to a breach of the representations and warranties in Section 3.12 and (2) where the Indemnified Party reasonably believes that the amount of the claim exceeds either (A) the amount that the Indemnifying Person with written notice of any proposed settlement in sufficient time Party is obligated to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, indemnify the Indemnified Person shall be permitted Party for pursuant to effect such settlement unless this Agreement or (B) the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance remaining amount of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party ClaimHoldback Amount.
Appears in 1 contract
Indemnification Procedure for Third Party Claims. (a) In the event that any party (the “Indemnified Person”) desires to make a claim against any other party (the “Indemnifying Person”) in connection with any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim or demand made by any Person not a party for which an Indemnitor may be liable to an Indemnitee pursuant to this Agreement against the Indemnified Person Article XI is asserted by a third party (a “Third-Third Party Claim”), such Indemnified Person must the Indemnitee shall promptly notify the Indemnifying Person Indemnitor in writing, writing of the Third-such Third Party Claim (such notice, a “Third-Party Claim Notice”). The Claim Notice shall (i) as promptly as reasonably possible after receiptstate that the Indemnitee has paid or properly accrued Losses or anticipates that it will incur liability for Losses for which such Indemnitee is entitled to indemnification pursuant to this Agreement, but and (ii) specify in no event later than fifteen (15) calendar days after receiptreasonable detail each individual item of Loss included in the amount so stated, by the date such Indemnified Person of notice item was paid or properly accrued, the basis for any anticipated liability and the nature of the Third-Party Claim; providedbreach of representation, that failure warranty, covenant or agreement to give a Third-Party which each such item is related and the computation of the amount to which such Indemnitee claims to be entitled hereunder. The Indemnitee shall enclose with the Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Person shall have been actually and materially prejudiced as a result copy of such failure. Upon receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the settlement and related expenses; provided, however, that upon rejection of any settlement and related expenses, the Indemnified Person shall assume control of the defense of such Third-Party Claim and the liability of the Indemnifying Person all papers served with respect to such Third-Third Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement Claim, if any, and related expensesany other documents evidencing such Third Party Claim.
(b) The Indemnified Person Indemnitor shall retain have 60 days from the right date on which the Indemnitor received the Claim Notice to employ notify the Indemnitee that the Indemnitor desires to assume the defense or prosecution of such Third Party Claim and any litigation resulting therefrom with counsel of its own counsel choice and to discuss matters with at its sole cost and expense. If the Indemnifying Person related to Indemnitor assumes the defense of such claim in accordance herewith: (i) the Indemnitee may retain separate co-counsel at its sole cost and expense and participate in the defense of such Third Party Claim, but the Indemnitor shall control the investigation, defense and settlement thereof; (ii) the Indemnitee shall not file any Third-papers or consent to the entry of any judgment or enter into any settlement with respect to such Third Party Claim without the prior written consent of the Indemnitor; and (iii) the Indemnitor shall not consent to the entry of any judgment or enter into any settlement with respect to such Third Party Claim to the extent such judgment or settlement provides for equitable relief without the prior written consent of the Indemnitee. The parties shall use commercially reasonable efforts to minimize Losses from Third Party Claims, act in good faith in responding to, defending against, settling or otherwise dealing with such claims, and cooperate in any such defense and give each other reasonable access to and copies of information, records and documents relevant thereto. Whether or not the Indemnitor has assumed the defense of such Third Party Claim, the defense of which has been assumed by Indemnitor will not be obligated to indemnify the Indemnifying Person pursuant Indemnitee hereunder with respect to Section 10.3(a) of this Agreement, but any settlement entered into or any judgment consented to without the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying PersonIndemnitor’s prior written consent.
(c) If the Indemnifying Person fails to give notice of the assumption of Indemnitor does not assume the defense of any Third-such Third Party Claim within a reasonable time period not to exceed forty-five (45) 60 days after of receipt of the Third-Party Claim Notice from the Indemnified PersonNotice, the Indemnifying Person shall no longer Indemnitee will be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its optionsole cost and expense (or, continue if the Indemnitee incurs a Loss with respect to defend such Third-Party Claim and, the matter in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim question for which the Indemnifying Person Indemnitee is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to indemnification pursuant to Sections 11.2 or 11.3, as applicable, at the expense of the Indemnitor), upon delivery of notice to such effect to the Indemnitor; provided, however, that: the Indemnitor (i) shall have the right to participate at its own expense and with its own counsel in the defense of any Third-the Third Party Claim at its sole cost and expense, but the Indemnitee shall control the investigation, defense and settlement thereof; (ii) may at any time thereafter assume defense of which it does not assume. Prior to effectuating any settlement of such Third-the Third Party Claim, in which event the Indemnified Person Indemnitor shall furnish bear the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such noticereasonable fees, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees costs and expenses of the Indemnitee’s counsel incurred prior to the assumption by the Indemnified Person in connection with such Claim; (b) assumes the Indemnitor of defense of such Third-the Third Party Claim; and (ciii) takes such other actions as shall not be obligated to indemnify the Indemnified Person may reasonably request as assurance Indemnitee hereunder for any settlement entered into or any judgment consented to without the Indemnitor’s prior written consent.
(d) This Section 11.4 shall not apply to any claim in respect of any Tax the Indemnifying Person’s ability to fulfill its obligations under procedures for which are governed by Section 8.5 of this Article 10 in connection with such Third-Party ClaimAgreement.
Appears in 1 contract
Sources: Stock Purchase Agreement (PAS, Inc.)
Indemnification Procedure for Third Party Claims. (a) In the event that any claim or demand, or other circumstance or state of facts which could give rise to any claim or demand, for which an Indemnitor may be liable to an Indemnitee hereunder is asserted or sought to be collected by a third party (the “Indemnified Person”) desires to make a claim against any other party (the “Indemnifying Person”) in connection with any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim or demand made by any Person not a party to this Agreement against the Indemnified Person (a “Third-Third Party Claim”), such Indemnified Person must the Indemnitee shall as soon as practicable (and in any event prior to the expiration of the Applicable Survival Period in Section 12.1) notify the Indemnifying Person Indemnitor in writing, writing of the Third-such Third Party Claim (a “Third-Party Claim NoticeNotice of Claim”) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice of the Third-Party Claim); provided, however, that failure to give a Third-Party Notice of Claim Notice on a timely basis shall not affect relieve the indemnification provided Indemnitor of its obligations hereunder except to the extent that the Indemnifying Person shall have Indemnitor has been actually and materially prejudiced as a result of by such failure. Upon receipt The Notice of Claim shall (i) state that the Indemnitee has paid or properly accrued Losses or anticipates that it will incur Liability for Losses for which such Indemnitee is entitled to indemnification pursuant to this Agreement, and (ii) specify in reasonable detail, to the extent then known, each individual item of Loss included in the amount so stated, the date such item was paid or properly accrued, if applicable, the basis for any anticipated Liability and the nature of the Third-misrepresentation, breach of warranty, breach of covenant or claim to which each such item is related and the computation of the amount to which such Indemnitee claims to be entitled hereunder, to the extent known or reasonably estimable. The Indemnitee shall enclose with the Notice of Claim a copy of all papers served with respect to such Third Party Claim, if any, and any other documents evidencing such Third Party Claim Notice in the possession of Indemnitee.
(b) The Indemnitor will have 60 days from the Indemnified Person, date on which the Indemnifying Person shall be entitled, at Indemnitor received the Indemnifying Person’s election, Notice of Claim to notify the Indemnitee that the Indemnitor desires to assume the defense or prosecution of such Third Party Claim and any litigation resulting therefrom with counsel of its choice and at its sole cost and expense (a “Third Party Defense”). If the Indemnitor assumes the Third Party Defense in accordance herewith, (i) the Indemnitee may retain separate co-counsel at its sole cost and expense and participate in the defense of any Third-the Third Party Claim at but the cost Indemnitor shall control the investigation, defense and settlement thereof, (ii) the Indemnitee will not file any papers or consent to the entry of Indemnifying Person. In any case in which judgment or enter into any settlement with respect to the Indemnifying Person assumes Third Party Claim without the defense prior written consent of the Third-Party ClaimIndemnitor (not to be unreasonably withheld or delayed), and (iii) the Indemnifying Person shall give Indemnitor will not, without the Indemnified Person ten (10) calendar days’ notice prior written consent of the Indemnitee, consent to executing the entry of any judgment or enter into any settlement agreement with respect to the Third Party Claim to the extent such judgment or settlement (A) provides for equitable relief against any Indemnitee, (B) provides for monetary damages to be paid other than by the Indemnitor; (C) includes an admission of fault or liability by the Indemnitee; or (D) does not include a full release of liability of the Indemnitee. The Parties will also reasonably cooperate in any such defense and give each other reasonable access to all information relevant thereto. Whether or not the Indemnified Person shall have Indemnitor has assumed the right Third Party Defense, such Indemnitor will not be obligated to approve indemnify the Indemnitee hereunder for any settlement entered into or reject any judgment that was consented to without the settlement and related expensesIndemnitor’s prior written consent (not to be unreasonably withheld or delayed); provided, however, that upon rejection of the Indemnitee will not be required to obtain any settlement and related expenses, the Indemnified Person shall assume control consent of the defense Indemnitor to the determination of such Third-Third Party Claim (and the liability of the Indemnifying Person will not prejudice its right to be indemnified with respect to such Third-Third Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-by settling such Third Party Claim) if the Indemnitor is disputing, in whole or in part, that it has an obligation to indemnify the Indemnitee in respect of such Claim. Notwithstanding the foregoing, the Indemnitor shall not be entitled to assume control of such defense of which has been assumed by if (x) the Indemnifying Person pursuant Third Party Claim relates to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses or arises in connection with any criminal Proceeding, (y) the Third Party Claim seeks an injunction or equitable relief against the Indemnitee, or (z) the Third Party Claim is brought against Buyer or the Company by a Governmental Entity and such participation; providedclaim seeks to, howeveror could have the effect of, that, subject to Section 10.3(a) above, all decisions limiting the scope of business or services offered by the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying PersonCompany.
(c) If the Indemnifying Person fails to give notice Indemnitor does not assume the Third Party Defense within 60 days of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Personof Claim, the Indemnifying Person shall no longer Indemnitee will be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person maythe Third Party Defense, at its optionsole cost and expense upon delivery of notice to such effect to the Indemnitor; provided that the (i) Indemnitor shall have the right to participate in the Third Party Defense at its sole cost and expense, continue but the Indemnitee shall control the investigation, defense and settlement thereof; (ii) the Indemnitor may at any time thereafter assume the Third Party Defense, provided that the terms and conditions relating to defend such Third-Party Claim andassumption as set forth in Section 12.5(b) are satisfied, in such eventwhich event the Indemnitor shall bear the reasonable fees, costs and expenses of the Indemnifying Person shall Indemnitee’s counsel incurred prior to the assumption by the Indemnitor of the Third Party Defense, and (iii) the Indemnitor will not be obligated to indemnify the Indemnified Person Indemnitee hereunder for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, entered into or any judgment that was consented to without the Indemnified Person shall furnish the Indemnifying Person with Indemnitor’s prior written notice of any proposed settlement in sufficient time consent (not to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party Claimunreasonably withheld or delayed).
Appears in 1 contract
Sources: Reorganization Agreement (Westwood Holdings Group Inc)
Indemnification Procedure for Third Party Claims. If any DaVita Indemnitee or any Rockwell Indemnitee entitled to indemnification under this Article XII (the “Indemnified Party”) receives notice of the assertion of any claim, or the commencement of any suit, action, or proceeding by any Person who is not a party hereto or an Affiliate of a party hereto (a “Third Party Claim”) against such Indemnified Party, the Indemnified Party shall give written notice regarding such Third Party Claim to the party hereto that is required to provide indemnification under this Article XII (the “Indemnifying Party”) within thirty (30) days after learning of such Third Party Claim. The Indemnifying Party shall have the right, upon written notice to the Indemnified Party (the “Defense Notice”) within thirty (30) days after receipt from the Indemnified Party of notice of such Third Party Claim, which Defense Notice by the Indemnifying Party shall specify the counsel it will appoint to defend such Third Party Claim (the “Defense Counsel”), to conduct at its expense the defense against such Third Party Claim in its own name, or if necessary in the name of the Indemnified Party; provided, however, that: (a) the Indemnified Party shall have the right to approve the Defense Counsel, which approval shall not be unreasonably withheld, conditioned, or delayed by the Indemnified Party and (b) as a condition precedent to the Indemnifying Party’s right to assume control of such defense, the Indemnifying Party must first enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for any and all Losses relating to such suit Third Party Claim and unconditionally guarantees the payment and performance of any and all Losses which may arise with respect to such Third Party Claim, subject to the terms and conditions set forth in this Section 12. The Indemnifying Party shall not have the right to assume control of, but may participate in, and the Indemnified Party shall have the sole right to assume control of any Third Party Claim which: (i) seeks a temporary restraining order, a preliminary or permanent injunction, or specific performance against the Indemnified Party, (ii) involves criminal or quasi-criminal allegations against the Indemnified Party, (iii) if unsuccessful would set a precedent that would materially interfere with, or have a material adverse effect on, the business or financial condition of the Indemnified Party, or (iv) imposes liability in the part of the Indemnified Party for substantially all of which the Indemnified Party is not entitled to indemnification under this Article XII. If the Indemnifying Party is permitted to assume and control the defense of any Third Party Claim and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such Third Party Claim and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (A) the employment thereof has been specifically authorized by the Indemnifying Party in writing, (B) the Indemnified Party has been advised by counsel that a conflict of interest exists between the Indemnifying Party and the Indemnified Party, or (C) the Indemnifying Party has failed to assume the defense and employ counsel, in which case the fees and expenses of the Indemnified Party’s counsel shall be paid by the Indemnifying Party. No Indemnifying Party shall consent to the entry of any judgment or enter into any settlement of any Third Party Claim without the prior written consent of the Indemnified Party if (w) such judgment or settlement would lead to liability or create any financial or other obligation on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder, (x) such judgment or settlement would result in the finding or admission of any violation of any federal, state, or local law, statute, ordinance, or regulation, (y) such judgment or settlement does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect to such Third Party Claim, or (z) as a result of such judgment or settlement, injunctive or other equitable relief would be imposed against the Indemnified Party. In the event that any party the Indemnifying Party fails to give the Defense Notice within thirty (the “Indemnified Person”30) desires to make days of receiving notice of a claim against any other party (the “Indemnifying Person”) in connection with any Losses for which Third Party Claim from the Indemnified Person may seek indemnification hereunder Party, it shall be deemed to have elected not to conduct the defense of such Third Party Claim, or in respect the event the Indemnifying Party does deliver a Defense Notice within thirty (30) days of receiving notice of such Third Party Claim from the Indemnified Party and thereby elects to not conduct the defense of such Third Party Claim, then in either such event the Indemnified Party shall have the right to conduct and control the defense of such Third Party Claim in good faith and to compromise and settle such Third Party Claim or consent to the entry of a claim or demand made judgment of such Third Party Claim in good faith without the prior consent of the Indemnifying Party. A failure by any Person not a party to this Agreement against the Indemnified Person (a “Third-Party Claim”), such Indemnified Person must notify the Indemnifying Person in writing, of the Third-Party Claim (a “Third-Party Claim Notice”) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice of the Third-Party Claim; provided, that failure to give a Third-Party Claim Notice on a timely basis shall timely, complete, or accurate notice as provided in this Section 12.3 will not affect the indemnification provided hereunder rights or obligations of the Indemnifying Party except and only to the extent the Indemnifying Person shall have been actually and materially prejudiced that, as a result of such failure. Upon receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, Party entitled to assume or participate in the defense receive such notice was deprived of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the its right to approve recover any payment under its applicable insurance coverage or reject the settlement was otherwise directly and related expenses; provided, however, that upon rejection of any settlement and related expenses, the Indemnified Person shall assume control of the defense materially damaged as a result of such Third-Party Claim and the liability of the Indemnifying Person with respect to such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails failure to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such timely notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party Claim.
Appears in 1 contract
Sources: Products Purchase Agreement (Rockwell Medical, Inc.)
Indemnification Procedure for Third Party Claims. (a) In the event that Promptly after receipt by an Indemnified Party of notice from any third party (the “Indemnified Person”) desires to make a claim against any other party (the “Indemnifying Person”) in connection with any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim or demand in respect of which indemnity may be sought under Section 9.2 or 9.3 which is asserted against or sought to be collected from the Indemnified Party, including the commencement of any Action against it (‘‘Third Party Claim’’), the Indemnified Party shall, if a claim is to be made against an Indemnifying Party under such Section 9.2 or 9.3, as applicable, give notice to the Indemnifying Party of the Third Party Claim, but the failure to notify the Indemnifying Party will not relieve the Indemnifying Party of any Liability that it may have to any Indemnified Party, except to the extent that the Indemnifying Party demonstrates that the defense of such Third Party Claim is prejudiced by the Indemnifying Party's failure to receive such notice. Such notice shall be delivered in accordance with Section 11.1.
(b) If any Person not Third Party Claim referred to in Section 9.4(a) is brought against an Indemnified Party, the Indemnifying Party will be entitled to participate in any Action underlying the claim and, to the extent that it wishes (unless the Indemnifying Party is also a party to this Agreement against such Action and the Indemnified Person (a “Third-Party determines in good faith that joint representation would be inappropriate, in which event such Indemnified Party shall have the right to retain, at the Indemnifying Party's reasonable expense, one separate counsel, reasonably satisfactory to the Indemnifying Party, to defend such claim on behalf of such Indemnified Party), assume the defense of such claim with counsel reasonably satisfactory to the Indemnified Party, and, after notice from the Indemnifying Party to the Indemnified Party of its election to assume the defense of such Action, except in the circumstances described in the parenthetical above, the Indemnifying Party will not, as long as it diligently conducts such defense, be liable to the Indemnified Party under this Section 9.4 for any fees of other counsel or any other expenses with respect to the defense of such claim, in each case, subsequently incurred by the Indemnified Party in connection with the defense of such claim, other than reasonable costs of investigation. If the Indemnifying Party assumes the defense of the Third Party Claim”: (i) no compromise or settlement of such claim may be effected by the Indemnifying Party without the Indemnified Party's written consent unless (1) there is no finding or admission of any violation of Law by any Indemnified Party or any violation of the rights of any Person, (2) such settlement or compromise releases the Indemnified Party in connection with such Third Party Claim, (3) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party and (4) such settlement or compromise does not restrict in any manner the ability of the Indemnified Party to conduct its business; (ii) the Indemnified Party will have no Liability with respect to any compromise or settlement of such claim effected without its written consent; and (iii) the Indemnified Party shall have the right to participate in such defense and to employ counsel, in each case, at its own expense. Subject to Section 9.4(c), such Indemnified Person must notify if notice is given to an Indemnifying Party of any Third Party Claim and the Indemnifying Person in writingParty does not, of the Third-Party Claim (a “Third-Party Claim Notice”) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar within 35 days after receiptthe Indemnified Party's notice is given, give notice to the Indemnified Party of its election to assume the defense of such Action, the Indemnifying Party will be bound by any determination made in such Action or any compromise or settlement effected by the Indemnified Party and the Indemnifying Party will be responsible for any Losses incurred in connection with the defense, compromise, settlement or final determination of such Action.
(c) Notwithstanding the foregoing, if an Indemnified Party determines in good faith that there is a reasonable probability that an Action may adversely affect it or its Affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, except where nonmonetary relief is merely incidental to a primary claim or claims for monetary damages, the Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise or settle such Action (provided, that any costs or fees incurred by the Indemnified Party in connection with such defense, compromise or settlement shall be borne exclusively by such Indemnified Person Party), but the Indemnifying Party will not be bound by any determination of notice of the Third-Party Claiman Action so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld); provided, that failure to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Person Party shall have been actually the right to participate in such defense and materially prejudiced as a result of such failure. Upon receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person to employ counsel at its own expense.
(d) The parties shall be entitled, at the Indemnifying Person’s election, to assume or participate cooperate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the settlement and related expenses; provided, however, that upon rejection of any settlement and related expenses, the Indemnified Person shall assume control of the defense of such Third-Third Party Claim and the liability of the Indemnifying Person with respect to shall furnish such Third-Party Claim shall records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals as may be limited to the amount or the monetary equivalent of the rejected settlement and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses reasonably requested in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms provisions of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party ClaimIX.
Appears in 1 contract
Indemnification Procedure for Third Party Claims. A party against whom indemnification is sought under this Agreement (athe “Indemnifying Party”) In shall have the event that any party right, but not the obligation, exercisable by written notice to the Person seeking such indemnification hereunder (the “Indemnified PersonParty”) desires to make a claim against any other party within thirty (the “Indemnifying Person”30) in connection with any Losses for which days after receipt of written notice from the Indemnified Person may seek indemnification hereunder Party of the commencement of or assertion of any claim, action, suit or proceeding by a third party in respect of a claim or demand made by any Person not a party to this Agreement against the Indemnified Person which indemnity may be sought hereunder (a “Third-Party Claim”), to assume the defense and control the settlement of such Indemnified Person must notify the Indemnifying Person in writing, of the Third-Party Claim (a “subject to the limitations set forth below) if such Third Party Claim involves (and continues to involve) solely money damages. The Indemnified Party shall have the right to assume the defense and control the settlement of any Third-Party Claim Notice”(x) as promptly as reasonably possible after receipt, but not described in no event later than fifteen the preceding sentence or (15y) calendar days after receipt, described in the preceding sentence whose defense and control of settlement has not been assumed by such Indemnified Person of notice of the Third-Party Claim; provided, that failure to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Person Party. The Indemnifying Party or the Indemnified Party, as the case may be, shall have been actually and materially prejudiced as a result of such failure. Upon receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitledright to participate in (but not control), at the Indemnifying Person’s electionits own expense, to assume or participate in the defense of any Third-Party Claim at that the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have other has the right to approve or reject the settlement and related expenses; provideddefend, however, that upon rejection of any settlement and related expenses, the Indemnified Person shall assume control of the defense of such Third-Party Claim and the liability of the Indemnifying Person with respect to such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of as provided in this Agreement. The Indemnifying Party, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails to give notice of the assumption of if it has assumed the defense of any Third-Party Claim within as provided in this Agreement, shall not consent to a reasonable time period not to exceed forty-five (45) days after receipt settlement of, or the entry of the Third-Party Claim Notice from the Indemnified Personany judgment arising from, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend any such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify without the Indemnified Person Party’s prior written consent (which consent shall not be unreasonably withheld or delayed). The Indemnifying Party shall not, without the Indemnified Party’s prior written consent, enter into any compromise or settlement which (i) commits the Indemnified Party to take, or to forbear to take, any action or (ii) does not provide for all reasonable fees a complete release by such Third Party of the Indemnified Party. The Indemnified Party shall have the sole and expenses in connection therewith (provided exclusive right to settle any Third-Party Claim, on such terms and conditions as it is a deems reasonably appropriate, to the extent such Third-Party Claim for which involves equitable or other non-monetary relief against the Indemnifying Person is otherwise obligated Indemnified Party, and shall have the right to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of settle any Third-Party Claim involving money damages for which the Indemnifying Party has not assumed the defense of which it does not assume. Prior pursuant to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance this Section 9.6 with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance written consent of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party ClaimParty, which consent shall not be unreasonably withheld or delayed.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Emeritus Corp\wa\)
Indemnification Procedure for Third Party Claims. If any DaVita Indemnitee or any Rockwell Indemnitee entitled to indemnification under this Article XII (the “Indemnified Party”) receives notice of the assertion of any claim, or the commencement of any suit, action, or proceeding by any Person who is not a party hereto or an Affiliate of a party hereto (a “Third Party Claim”) against such Indemnified Party, the Indemnified Party shall give written notice regarding such Third Party Claim to the party hereto that is required to provide indemnification under this Article XII (the “Indemnifying Party”) within thirty (30) days after learning of such Third Party Claim. The Indemnifying Party shall have the right, upon written notice to the Indemnified Party (the “Defense Notice”) within thirty (30) days after receipt from the Indemnified Party of notice of such Third Party Claim, which Defense Notice by the Indemnifying Party shall specify the counsel it will appoint to defend such Third Party Claim (the “Defense Counsel”), to conduct at its expense the defense against such Third Party Claim in its own name, or if necessary in the name of the Indemnified Party; provided, however, that: (a) the Indemnified Party shall have the right to approve the Defense Counsel, which approval shall not be unreasonably withheld, conditioned, or delayed by the Indemnified Party and (b) as a condition precedent to the Indemnifying Party’s right to assume control of such defense, the Indemnifying Party must first enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for any and all Losses relating to such Third Party Claim and unconditionally guarantees the payment and performance of any and all Losses which may arise with respect to such Third Party Claim, subject to the terms and conditions set forth in this Section 12. The Indemnifying Party shall not have the right to assume control of, but may participate in, and the Indemnified Party shall have the sole right to assume control of any Third Party Claim, at its own expense which: (i) seeks a temporary restraining order, a preliminary or permanent injunction, or specific performance against the Indemnified Party, (ii) involves criminal or quasi-criminal allegations against the Indemnified Party, (iii) if unsuccessful would set a precedent that would materially interfere with, or have a material adverse effect on, the business or financial condition of the Indemnified Party, or (iv) imposes liability in the part of the Indemnified Party for substantially all of which the Indemnified Party is not entitled to indemnification under this Article XII. If the Indemnifying Party is permitted to assume and control the defense of any Third Party Claim and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such Third Party Claim and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (A) the employment thereof has been specifically authorized by the Indemnifying Party in writing, (B) the Indemnified Party has been advised by counsel that a conflict of interest exists between the Indemnifying Party and the Indemnified Party, or (C) the Indemnifying Party has failed to assume the defense and employ counsel, in which case the fees and expenses of the Indemnified Party’s counsel shall be paid by the Indemnifying Party. No Indemnifying Party shall consent to the entry of any judgment or enter into any settlement of any Third Party Claim without the prior written consent of the Indemnified Party if (w) such judgment or settlement would lead to liability or create any financial or other obligation on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder, (x) such judgment or settlement would result in the finding or admission of any violation of any federal, state, or local law, statute, ordinance, or regulation, (y) such judgment or settlement does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect to such Third Party Claim, or (z) as a result of such judgment or settlement, injunctive or other equitable relief would be imposed against the Indemnified Party. In the event that any party the Indemnifying Party fails to give the Defense Notice within thirty (the “Indemnified Person”30) desires to make days of receiving notice of a claim against any other party (the “Indemnifying Person”) in connection with any Losses for which Third Party Claim from the Indemnified Person may seek indemnification hereunder Party, it shall be deemed to have elected not to conduct the defense of such Third Party Claim, or in respect the event the Indemnifying Party does deliver a Defense Notice within thirty (30) days of receiving notice of such Third Party Claim from the Indemnified Party and thereby elects to not conduct the defense of such Third Party Claim, then in either such event the Indemnified Party shall have the right to conduct and control the defense of such Third Party Claim in good faith and to compromise and settle such Third Party Claim or consent to the entry of a claim or demand made judgment of such Third Party Claim in good faith without the prior consent of the Indemnifying Party. A failure by any Person not a party to this Agreement against the Indemnified Person (a “Third-Party Claim”), such Indemnified Person must notify the Indemnifying Person in writing, of the Third-Party Claim (a “Third-Party Claim Notice”) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice of the Third-Party Claim; provided, that failure to give a Third-Party Claim Notice on a timely basis shall timely, complete, or accurate notice as provided in this Section 12.3 will not affect the indemnification provided hereunder rights or obligations of the Indemnifying Party except and only to the extent the Indemnifying Person shall have been actually and materially prejudiced that, as a result of such failure. Upon receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, Party entitled to assume or participate in the defense receive such notice was deprived of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the its right to approve recover any payment under its applicable insurance coverage or reject the settlement was otherwise directly and related expenses; provided, however, that upon rejection of any settlement and related expenses, the Indemnified Person shall assume control of the defense materially damaged as a result of such Third-Party Claim and the liability of the Indemnifying Person with respect to such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails failure to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such timely notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party Claim.
Appears in 1 contract
Sources: Products Purchase Agreement (Rockwell Medical, Inc.)
Indemnification Procedure for Third Party Claims. (a) In the event that any party (the “Indemnified Person”) desires claim or demand, or other circumstance or state of facts which could give rise to make a any claim against any other party (the “Indemnifying Person”) in connection with any Losses or demand, for which the Indemnified Person an Indemnitor may seek indemnification be liable to an Indemnitee hereunder in respect of is asserted or sought to be collected by a claim or demand made by any Person not a third party to this Agreement against the Indemnified Person (a “Third-Third Party Claim”), such Indemnified Person must the Indemnitee shall as soon as practicable notify the Indemnifying Person Indemnitor in writing, writing of the Third-such Third Party Claim (a “Third-Notice of Claim”). Failure or delay in notifying the Indemnitor will not relieve the Indemnitor of any Liability it may have to the Indemnitee, except and only to the extent that such failure or delay causes actual harm to the Indemnitor with respect to such Third Party Claim. The Notice of Claim shall (i) state that the Indemnitee has paid, to the extent then known by the Indemnitee, Losses or anticipates that it will incur liability for Losses for which such Indemnitee is entitled to indemnification pursuant to this Agreement, and (ii) specify in reasonable detail to the extent then known by the Indemnitee each individual item of Loss included in the amount so stated, the date such item was paid or accrued, or the basis for any anticipated liability and the nature of the misrepresentation, breach of warranty, breach of covenant, breach of agreement or other claim to which each such item is related and the computation of the amount to which such Indemnitee claims to be entitled hereunder. The Indemnitee shall enclose with the Notice of Claim a copy of all papers served with respect to such Third Party Claim, if any, and any other documents evidencing such Third Party Claim.
(b) If any action or proceeding referred to in Section 11.4(a) is brought against an Indemnitee and it provides a Notice of Claim, the Indemnitee will be entitled to participate in such action or proceeding, the relief sought is monetary damages and the Indemnitor gives written notice, for so long as the Indemnitor diligently conducts such defense, the Indemnitor will have thirty (30) days from the date on which the Indemnitor received the Notice of Claim to notify the Indemnitee that the Indemnitor desires to assume the defense or prosecution of such Third Party Claim Noticeand any litigation resulting therefrom with counsel reasonably acceptable to Indemnitee and at Indemnitor’s sole cost and expense (a “Third Party Defense”) as promptly as reasonably possible after receiptunless the Indemnitee is also a party to such action and the Indemnitor determines in good faith that joint representation would be inappropriate. If the Indemnitor assumes the Third Party Defense in accordance herewith, but (i) the Indemnitee may retain separate co-counsel at its sole cost and expense and participate in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice the defense of the Third-Party Claim; provided, that failure to give a Third-Third Party Claim Notice on a timely basis but the Indemnitor shall control the investigation, defense and settlement thereof so long as the Indemnitor diligently conducts such defense, (ii) the Indemnitee will not affect file any papers or consent to the indemnification provided hereunder entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnitor and (iii) the Indemnitor will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim to the extent such judgment or settlement provides for equitable relief against the Indemnitee, or to the extent the Losses from such Third Party Claim would exceed the Indemnity Cap, without the prior written consent of the Indemnitee. The Parties will use commercially reasonable efforts to minimize Losses from Third Party Claims and will act in good faith in responding to, defending against, settling or otherwise dealing with such claims. The Parties will also cooperate in any such defense and give each other reasonable access to all information relevant thereto, except to the extent the Indemnifying Person shall have been actually Indemnitee is also a party to the action and materially there are separate defenses that would be available to a party that could reasonably be expected to be prejudiced as a result of by such failurecooperation and access. Upon receipt of Whether or not the Third-Indemnitor has assumed the Third Party Claim Notice from Defense, such Indemnitor will not be obligated to indemnify the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing Indemnitee hereunder for any settlement agreement and entered into or any judgment that was consented to without the Indemnified Person shall have the right to approve or reject the settlement and related expenses; provided, however, that upon rejection of any settlement and related expenses, the Indemnified Person shall assume control of the defense of such Third-Party Claim and the liability of the Indemnifying Person with respect to such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying PersonIndemnitor’s prior written consent.
(c) If the Indemnifying Person fails to give notice of Indemnitor does not assume the assumption of the defense of any Third-Third Party Claim Defense within a reasonable time period not to exceed forty-five thirty (4530) days after of receipt of the Third-Party Claim Notice from the Indemnified Personof Claim, the Indemnifying Person shall no longer Indemnitee will be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person maythe Third Party Defense, at its optionsole cost and expense (or, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided if it is finally determined that the Indemnitee incurred a Third-Party Claim Loss with respect to the matter in question for which the Indemnifying Person Indemnitee is otherwise entitled to indemnification pursuant to Sections 11.2 or 11.3, as applicable, at the expense of the Indemnitor) upon delivery of notice to such effect to the Indemnitor; provided, however, that (i) the Indemnitor shall have the right to participate in the Third Party Defense at its sole cost and expense, but the Indemnitee shall control the investigation, defense and settlement thereof; (ii) the Indemnitor may at any time thereafter assume the Third Party Defense, in which event the Indemnitor shall bear the reasonable fees, costs and expenses of the Indemnitee’s counsel incurred prior to the assumption by the Indemnitor of the Third Party Defense, and (iii) the Indemnitor will not be obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in indemnify the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating Indemnitee hereunder for any settlement of such Third-Party Claim, entered into or any judgment that was consented to without the Indemnified Person shall furnish the Indemnifying Person with Indemnitor’s prior written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party Claimconsent.
Appears in 1 contract
Sources: Stock Purchase Agreement (Palace Entertainment Holdings, Inc.)
Indemnification Procedure for Third Party Claims. (a) IX.3.1 In the event that subsequent to the Closing any party Person entitled to indemnification under this Agreement (an "INDEMNIFIED PARTY") receives notice of the “Indemnified Person”) desires to make a claim against assertion of any other party (claim, issuance of any order or the “Indemnifying Person”) in connection with commencement of any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim action or demand made proceeding by any Person who is not a party to this Agreement or an Affiliate of a party, including, without limitation, any domestic or foreign court or Governmental Authority (a "THIRD PARTY CLAIM"), against such Indemnified Party, against which a party to this Agreement is required to provide indemnification under this Agreement (an "INDEMNIFYING PARTY"), the Indemnified Person (Party shall give written notice thereof together with a “Third-Party Claim”), statement of any available information regarding such Indemnified Person must notify claim to the Indemnifying Person in writing, of the Third-Party Claim within thirty (a “Third-Party Claim Notice”30) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receiptlearning of such claim (or within such shorter time as may be necessary, by in the Indemnified Party's reasonable judgment, to give the Indemnifying Party a reasonable opportunity to respond to and defend such claim). The Indemnifying Party shall have the right, upon written notice to the Indemnified Person Party (the "DEFENSE NOTICE") within ten days (10) after receipt from the Indemnified Party of notice of such claim, to conduct at its expense the Third-Party Claimdefense against such claim in its own name, or if necessary in the name of the Indemnified Party; provided, however, that failure to give a Third-the -------- ------- Indemnified Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Person shall have been actually and materially prejudiced as a result of such failure. Upon receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the defense counsel selected by the Indemnifying Party, which approval shall not be unreasonably withheld, and in the event the Indemnifying Party and the Indemnified Party cannot agree upon such counsel within ten (10) days after the Defense Notice is provided, then the Indemnifying Party shall propose an alternate defense counsel, who shall be subject again to the Indemnified Party's approval.
IX.3.2 In the event that the Indemnifying Party shall fail to timely give the Defense Notice, it shall be deemed to have elected not to conduct the defense of the subject claim, and in such event the Indemnified Party shall have the right to conduct such defense in good faith at the cost and expense of the Indemnifying Party and the Indemnifying Party shall reimburse the Indemnified Party for all costs, expenses and settlement and related expensesamounts actually paid in connection therewith; provided, however, that upon rejection of any settlement and related expenses, -------- ------- under no circumstances shall the Indemnified Person shall assume control of the defense of such Third-Party compromise or settle any Third Party Claim and without the liability prior written consent of the Indemnifying Person with respect to such Third-Party Claim shall be limited to (which, in the amount or the monetary equivalent case of the rejected settlement and related expensesMembers, may be granted by the Member Representative (as defined in Section 9.13)), which consent shall not be ------------ unreasonably withheld or delayed.
(b) The Indemnified Person shall retain IX.3.3 In the right to employ its own counsel and to discuss matters with event that the Indemnifying Person related Party does elect to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in conduct the defense of the Third-subject claim, the Indemnified Party Claim, including refraining from taking any position adverse will cooperate with and make available to the Indemnifying Person.
(c) If Party such assistance and materials as may be reasonably requested by it, all at the expense of the Indemnifying Person fails Party, and the Indemnified Party shall have the right at its expense to give notice participate in the defense assisted by counsel of its own choosing, provided that the Indemnified Party shall have the right to compromise and settle the claim only with the prior written consent of the assumption Indemnifying Party, which consent shall not be unreasonably withheld or delayed. Without the prior written consent of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified PersonParty, the Indemnifying Person Party will not enter into any settlement of any Third Party Claim or cease to defend against such claim, if pursuant to or as a result of such settlement or cessation, (i) injunctive or other equitable relief would be imposed against the Indemnified Party, or (ii) such settlement or cessation would lead to liability or create any financial or other obligation on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder, or (iii) such settlement includes a written admission of guilt. The Indemnifying Party shall no longer not be entitled to assume (but control, and the Indemnified Party shall continue to be entitled to participate inhave sole control over, the defense or settlement of any claim (A) to the extent that claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party or (B) in a proceeding to which the Indemnifying Party is also a party and the Indemnified Party determines in good faith that joint representation would be inappropriate (and in each case the cost of such defensedefense shall constitute an amount for which the Indemnified Party is entitled to indemnification hereunder). The If an offer is made to settle a Third Party Claim which all parties to such Third Party Claim (including the Indemnifying Party) are prepared to settle and which offer the Indemnifying Party is permitted to settle under this Section 9.3.3 only upon the prior written consent of the Indemnified Person mayParty, at ------------- the Indemnifying Party will give prompt written notice to the Indemnified Party to that effect. If the Indemnified Party fails to consent to such firm offer within (30) calendar days after its optionreceipt of such notice, the Indemnified Party may continue to contest or defend such Third-Third Party Claim and, in such event, the maximum liability of the Indemnifying Person shall indemnify Party as to such Third Party Claim will not exceed the Indemnified Person for all reasonable fees amount of such settlement offer, plus costs and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses paid or incurred by the Indemnified Person in connection with such Claim; (b) assumes Party through the defense end of such Third-Party Claim; (30) day period.
IX.3.4 Any judgment entered, order issued or settlement agreed upon in the manner provided herein shall be binding upon the Indemnifying Party, and (c) takes such other actions as shall conclusively be deemed to be an obligation with respect to which the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability Party is entitled to fulfill its obligations under this Article 10 in connection with such Third-Party Claimprompt indemnification hereunder.
Appears in 1 contract
Indemnification Procedure for Third Party Claims. (a) In the event that any claim or demand, or other circumstance or state of facts which could give rise to any claim or demand, for which an Indemnitor may be liable to an Indemnitee hereunder is asserted or sought to be collected by a third party (the “Indemnified Person”) desires to make a claim against any other party (the “Indemnifying Person”) in connection with any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim or demand made by any Person not a party to this Agreement against the Indemnified Person (a “Third-Third Party Claim”), such Indemnified Person must the Indemnitee shall as soon as practicable (and in any event prior to the expiration of the Applicable Survival Period in Section 11.1) notify the Indemnifying Person Indemnitor in writing, writing of the Third-such Third Party Claim (a “Third-Party Notice of Claim”). The Notice of Claim Notice”shall (i) as promptly as reasonably possible after receiptstate that the Indemnitee has paid or properly accrued Losses or anticipates that it will incur Liability for Losses for which such Indemnitee is entitled to indemnification pursuant to this Agreement, but and (ii) specify in no event later than fifteen (15) calendar days after receiptreasonable detail each individual item of Loss included in the amount so stated, by the date such Indemnified Person of notice item was paid or properly accrued, the basis for any anticipated Liability and the nature of the Third-Party Claim; providedmisrepresentation, that failure breach of warranty, breach of covenant or claim to give a Third-Party Claim Notice on a timely basis shall not affect which each such item is related and the indemnification provided hereunder except to the extent the Indemnifying Person shall have been actually and materially prejudiced as a result of such failure. Upon receipt computation of the Third-Party amount to which such Indemnitee claims to be entitled hereunder. The Indemnitee shall enclose with the Notice of Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense a copy of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the settlement and related expenses; provided, however, that upon rejection of any settlement and related expenses, the Indemnified Person shall assume control of the defense of such Third-Party Claim and the liability of the Indemnifying Person all papers served with respect to such Third-Third Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement Claim, if any, and related expensesany other documents evidencing such Third Party Claim.
(b) The Indemnified Person shall retain Indemnitor will have 60 days from the right date on which the Indemnitor received the Notice of Claim to employ its own counsel and notify the Indemnitee that the Indemnitor desires to discuss matters with the Indemnifying Person related to assume the defense or prosecution of such Third Party Claim and any Thirdlitigation resulting therefrom with counsel of its choice and at its sole cost and expense (a “Third Party Defense”). If the Indemnitor assumes the Third Party Defense in accordance herewith, (i) the Indemnitee may retain separate co-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear counsel at its sole cost and shall be solely responsible for its own costs expense and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects participate in the defense of the Third-Third Party ClaimClaim but the Indemnitor shall control the investigation, including refraining from taking defense and settlement thereof, (ii) the Indemnitee will not file any position adverse papers or consent to the Indemnifying Personentry of any judgment or enter into DB1/65207936.19 any settlement with respect to the Third Party Claim without the prior written consent of the Indemnitor, and (iii) the Indemnitor will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim to the extent such judgment or settlement provides for equitable relief without the prior written consent of the Indemnitee. The Parties will use commercially reasonable efforts to minimize Losses from Third Party Claims and will act in good faith in responding to, defending against, settling or otherwise dealing with such claims. The Parties will also cooperate in any such defense and give each other reasonable access to all information relevant thereto. Whether or not the Indemnitor has assumed the Third Party Defense, such Indemnitor will not be obligated to indemnify the Indemnitee hereunder for any settlement entered into or any judgment that was consented to without the Indemnitor’s prior written consent. Notwithstanding the foregoing, the Indemnitor shall not be entitled to assume control of such defense if (x) the Third Party Claim relates to or arises in connection with any criminal Proceeding, (y) the Third Party Claim seeks an injunction or equitable relief against the Indemnitee, or (z) the Third Party Claim is brought against Buyer or the Company by a Governmental Entity and such claim seeks to, or could have the effect of, limiting the scope of business or services offered by the Company.
(c) If the Indemnifying Person fails to give notice Indemnitor does not assume the Third Party Defense within 60 days of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Personof Claim, the Indemnifying Person shall no longer Indemnitee will be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person maythe Third Party Defense, at its optionsole cost and expense upon delivery of notice to such effect to the Indemnitor; provided that the (i) Indemnitor shall have the right to participate in the Third Party Defense at its sole cost and expense, continue to defend such Third-but the Indemnitee shall control the investigation, defense and settlement thereof; (ii) the Indemnitor may at any time thereafter assume the Third Party Claim andDefense, in such eventwhich event the Indemnitor shall bear the reasonable fees, costs and expenses of the Indemnifying Person shall Indemnitee’s counsel incurred prior to the assumption by the Indemnitor of the Third Party Defense, and (iii) the Indemnitor will not be obligated to indemnify the Indemnified Person Indemnitee hereunder for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, entered into or any judgment that was consented to without the Indemnified Person shall furnish the Indemnifying Person with Indemnitor’s prior written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party Claimconsent.
Appears in 1 contract
Sources: Securities Purchase Agreement (Westwood Holdings Group Inc)
Indemnification Procedure for Third Party Claims. In the event that subsequent to the Closing any Person entitled to indemnification under this Agreement (an “Indemnified Party”) asserts a claim for indemnification or receives notice of the assertion of any claim or of the commencement of any action or proceeding by any entity that is not a party to this Agreement or an Affiliate of a party to this Agreement (including, but not limited to any domestic or foreign court or Governmental Authority, federal, state or local) (a “Third Party Claim”) against such Indemnified Party, against which a party to this Agreement is required to provide indemnification under this Agreement (an “Indemnifying Party”), the Indemnified Party shall give written notice together with a statement of any available information regarding such claim to the Indemnifying Party within 60 days after learning of such claim (or within such shorter time as may be necessary to give the Indemnifying Party a reasonable opportunity to respond to such claim). The Indemnifying Party shall have the right, upon written notice to the Indemnified Party (the “Defense Notice”) within 30 days after receipt from the Indemnified Party of notice of such claim, which notice by the Indemnifying Party shall specify the counsel it will appoint to defend such claim (“Defense Counsel”), to conduct at its expense the defense against such claim in its own name, or if necessary in the name of the Indemnified Party; provided, however, that the Indemnified Party shall have the right to approve the Defense Counsel, which approval shall not be unreasonably withheld, and in the event the Indemnifying Party and the Indemnified Party cannot agree upon such counsel within 10 days after the Defense Notice is provided, then the Indemnifying Party shall propose an alternate Defense Counsel, which shall be subject again to the Indemnified Party’s approval. If the parties still fail to agree on Defense Counsel, then, at such time, they shall mutually agree in good faith on a procedure to determine the Defense Counsel. The delivery of a Defense Notice shall not constitute an admission with respect to the claim for indemnification.
(a) In the event that any party (the “Indemnifying Party shall fail to give the Defense Notice, it shall be deemed to have elected not to conduct the defense of the subject claim, and in such event the Indemnified Person”) desires Party shall have the right to make a conduct such defense in good faith and to compromise and settle the claim against any without prior consent of the Indemnifying Party and the Indemnifying Party will be liable for all costs, expenses, settlement amounts or other party (the “Indemnifying Person”) Losses paid or incurred in connection with any Losses for which therewith.
(b) In the event that the Indemnifying Party does deliver a Defense Notice and thereby elects to conduct the defense of the subject claim, the Indemnified Person Party will cooperate with and make available to the Indemnifying Party such assistance and materials as it may seek indemnification hereunder in respect reasonably request, all at the expense of a claim or demand made by any Person not a party to this Agreement against the Indemnifying Party, and the Indemnified Person (a “Third-Party Claim”)shall have the right at its expense to participate in the defense assisted by counsel of its own choosing, such provided that the Indemnified Person must notify Party shall have the right to compromise and settle the claim only with the prior written consent of the Indemnifying Person in writingParty, which consent shall not be unreasonably withheld or delayed.
(c) Without the prior written consent of the Third-Indemnified Party, the Indemnifying Party will not enter into any settlement of any Third Party Claim (a “Third-Party Claim Notice”) as promptly as reasonably possible after receiptor cease to defend against such claim, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice of the Third-Party Claim; provided, that failure if pursuant to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Person shall have been actually and materially prejudiced or as a result of such failure. Upon receipt settlement or cessation, (i) injunctive or other equitable relief would be imposed against the Indemnified Party, or (ii) such settlement or cessation would lead to liability or create any financial or other obligation on the part of the Third-Indemnified Party Claim Notice from for which the Indemnified PersonParty is not entitled to indemnification hereunder.
(d) The Indemnifying Party shall not be entitled to control, and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent that claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party (and the cost of such defense shall constitute an amount for which the Indemnified Party is entitled to indemnification hereunder).
(e) If a firm decision is made to settle a Third Party Claim, which offer the Indemnifying Party is permitted to settle under this Section 12.3, and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, Party will give written notice to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior Party to executing any settlement agreement and that effect. If the Indemnified Person shall have the right Party fails to approve or reject the settlement and related expenses; provided, however, that upon rejection consent to such firm offer within 15 calendar days after its receipt of any settlement and related expensessuch notice, the Indemnified Person shall assume control of the defense of such Third-Party Claim and the liability of the Indemnifying Person with respect to such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall may continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to contest or defend such Third-Third Party Claim and, in such event, the maximum liability of the Indemnifying Person shall indemnify Party as to such Third Party Claim will not exceed the Indemnified Person for all reasonable fees amount of such settlement offer, plus costs and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses paid or incurred by the Indemnified Person in connection with such Claim; (b) assumes Party through the defense end of such Third15-Party Claim; day period.
(f) Any judgment entered or settlement agreed upon in the manner provided herein shall be binding upon the Indemnifying Party, and (c) takes such other actions as shall conclusively be deemed to be an obligation with respect to which the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability Party is entitled to fulfill its obligations under this Article 10 in connection with such Third-Party Claimprompt indemnification hereunder.
Appears in 1 contract
Sources: Asset Contribution and Exchange Agreement (Novamed Inc)
Indemnification Procedure for Third Party Claims. (a) In the event that any claim or demand, or other circumstance or statement of facts which could give rise to any claim or demand, for which an Indemnitor may be liable to an Indemnitee hereunder is asserted or sought to be collected by a third party (the “Indemnified Person”) desires to make a claim against any other party (the “Indemnifying Person”) in connection with any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim or demand made by any Person not a party to this Agreement against the Indemnified Person (a “Third-Third Party Claim”), such Indemnified Person must the Indemnitee shall as soon as practicable notify the Indemnifying Person Indemnitor in writing, writing of the Third-such Third Party Claim (a “Third-Party Notice of Claim”); provided that any Notice of Claim Notice”) required to be provided to the Company Stockholders, the Company Optionholders and the RSU Holders as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice of Indemnitors pursuant to Section 12.2 shall be delivered to the Third-Party ClaimStockholder Representative; provided, further, that the failure to give a Third-Party provide the Notice of Claim Notice on a timely basis shall not affect the indemnification provided hereunder release any Indemnitor from any of its, his or her obligations under this Article XII except to the extent the Indemnifying Person shall have that such Indemnitor has been actually and materially prejudiced as a result of by such failure. Upon The Notice of Claim shall (i) state that the Indemnitee has paid, suffered, reserved or properly accrued Losses or reasonably anticipates that it will incur liability for Losses for which such Indemnitee is entitled to indemnification pursuant to this Agreement, (ii) state the amount of such Losses to the extent known, and (iii) specify in reasonable detail the material facts known to the Indemnitee giving rise to such claim and the nature of the misrepresentation, breach of warranty, breach of covenant or claim to which each such item is related and the computation of the amount to which such Indemnitee claims to be entitled hereunder. The Indemnitee shall enclose with the Notice of Claim a copy of all relevant papers served with respect to such Third Party Claim, if any, and any other documents evidencing such Third Party Claim.
(b) Notwithstanding the foregoing, if the Indemnitor (to the extent the Indemnitors are the Company Stockholders and the Company Optionholders, the Stockholder Representative) acknowledges in writing, subject to the limitations contained in this Article XII, the obligation of the Indemnitors to indemnify and hold harmless the Indemnitees against any Losses that may result from such Third Party Claim, then the Indemnitor (to the extent the Indemnitors are the Company Stockholders, the Company Optionholders, and the RSU Holders, the Stockholder Representative) shall be entitled to assume and control the defense of such Third Party Claim at their expense through counsel of their choice (such counsel to be reasonably acceptable to Parent) if the Indemnitor (to the extent the Indemnitors are the Company Stockholders, the Company Optionholders and the RSU Holders, the Stockholder Representative) gives notice of such intention to Indemnitee within twenty (20) days of the receipt of the Third-Party Claim Notice from of Claims. Notwithstanding the Indemnified Personforegoing, the Indemnifying Person Stockholder Representative shall be entitled, at not have the Indemnifying Person’s election, right to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Third Party Claim to the extent (i) any such claim seeks, in addition to or in lieu of monetary losses, any injunctive or other equitable relief, (ii) the Stockholder Representative fails to provide reasonable assurance to Parent of the adequacy of the Escrow Fund to provide indemnification in accordance with the provisions of this Agreement and the Escrow Agreement with respect to such proceeding, (iii) there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate (in the judgment of Parent in its reasonable discretion) for the same counsel to represent both the Parent Indemnitee and the Indemnitors, (iv) the Third Party Claim involves or relates to the subject matter contained in Section 4.9 (Compliance with Law, Authorizations), Section 4.22 (Healthcare Regulatory Matters) or Section 4.23 (HIPAA Compliance), (v) any such claim relates to or arises in connection with any criminal action, indictment, allegation or Action, or (vi) settlement of, or an adverse judgment with respect to, the Third Party Claim may establish (in the judgment of Parent) a precedential custom or practice adverse to the business interests or reputation of Parent or any of its Affiliates or involves any Tax liability of Parent or any of its Affiliates; provided, further, that if by reason of the Third Party Claim a lien, attachment, garnishment, execution or other Lien is placed upon any of the property or assets of such Parent Indemnitee, the Indemnitor, if it desires to exercise the right to assume such defense of the Third Party Claim, must furnish a satisfactory indemnity bond to obtain the Indemnifying Person shall give prompt release of such lien, attachment, garnishment, execution or other Lien; (provided, further, the Indemnified Person ten (10) calendar days’ notice prior Stockholder Representative shall, at its own cost and expense and without recourse to executing any settlement agreement and the Indemnified Person shall Escrow Fund, have the right to approve or reject the settlement observe and related expenses; provided, however, that upon rejection of any settlement and related expenses, the Indemnified Person shall assume control be reasonably informed of the defense of such Third-Party Claim and the liability of the Indemnifying Person with respect to such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Third Party Claim, the defense but Parent shall control all aspects of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claimdefense, including refraining from taking any position adverse to the Indemnifying Personinvestigation, defense and settlement thereof).
(c) If the Indemnifying Person fails to give notice of the assumption of Stockholder Representative assumes the defense of any Third-a Third Party Claim within a reasonable time period not as provided above, they will conduct the defense actively, diligently and at their own expense, and, subject to exceed forty-five the limitations contained in this Article XII, the Company Stockholders, Company Optionholders and RSU Holders will indemnify and hold the Parent Indemnitees harmless from and against all Losses caused by or arising out of such Third Party Claim. The Parent Indemnitees shall reasonably cooperate with the Stockholder Representative in such defense and make available to the Stockholder Representative (45at the Stockholder Representative’s expense) days after receipt all pertinent records, materials and information in the Parent Indemnitee’s possession or under the Parent Indemnitee’s control relating thereto as is reasonably requested by the Stockholder Representative. Except with the written consent of the Third-Party Claim Notice from the Indemnified PersonParent, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person mayStockholder Representative will not, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of a Third Party Claim, consent to the entry of any Third-Party Claim judgment or enter into any settlement (i) which does not include as an unconditional term thereof the giving to the Parent Indemnitee and all of its Affiliates by the third party of a release from all liability with respect to such suit, claim, action, or proceeding; (ii) unless there is no finding or admission of (A) any violation of Law by the Parent Indemnitee (or any Affiliate thereof), (B) any liability on the part of the Parent Indemnitee (or any Affiliate thereof) or (C) any violation of the rights of any Person and no effect on any other claims of a similar nature that may be made by the same third party against the Parent Indemnitee (or any Affiliate thereof); and (iii) which exceeds the then current value of the Escrow Fund. The Stockholder Representative shall be required to provide Parent a copy of any proposed judgment or proposed settlement before the Stockholder Representative consents or enters into any such judgment or settlement. Without limiting the foregoing, the Stockholder Representative shall not consent to the entry of any judgment or enter into any settlement if within twenty (20) Business Days after Parent is provided a copy of the proposed final judgment or proposed settlement, Parent provides written notice to the Stockholder Representative that in the reasonable judgment of Parent such judgment or settlement would adversely affect the Surviving Corporation, Parent or any Parent Indemnitee.
(d) In the event that the Stockholder Representative fails or elects not to assume the defense of a Parent Indemnitee against such Third Party Claim which it does the Stockholder Representative had the right to assume under this Section 12.5 (or after assuming such defense, fails to actively and diligently conduct the defense thereof) or if the Stockholder Representative is not assume. Prior entitled to effectuating assume such defense under this Section 12.5, the Parent Indemnitees shall have the right, at the expense of the Indemnitees, to defend or prosecute such claim (and in such event shall do so actively and diligently) and may settle such claim or consent to entry of judgment after giving written notice thereof to the Stockholder Representative, on such terms as such Parent Indemnitee may deem appropriate; provided, however, that if the Parent Indemnitee settles any such Third Party Claim or consents to entry of judgment without the consent of the Stockholder Representative (which consent shall not be unreasonably withheld or delayed), the settlement of such Third-claim or consent to entry of judgment shall not, nor shall the entry of any judgment in and of itself, prevent the Stockholder Representative from contesting (on behalf of the Indemnitors) the issue of whether such claim is within the scope of and subject to indemnification under this Article XII. The Stockholder Representative shall cooperate with the Parent Indemnitees in such defense and make available to the Parent Indemnitees, at their expense, all such witnesses, records, materials and information in their possession or under their control relating thereto as is reasonably requested by the Parent Indemnitee. If the Stockholder Representative does not elect to assume the defense of a Third Party ClaimClaim which it has the right to assume hereunder, the Indemnified Person Parent Indemnitees shall furnish have no obligation to do so.
(e) To the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance extent that this Section 12.5 conflicts with the terms of this Article 10 for all reasonable fees and expenses incurred by Section 8.4, the Indemnified Person in connection with such Claim; (b) assumes the defense terms of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party ClaimSection 8.4 shall control.
Appears in 1 contract
Indemnification Procedure for Third Party Claims. In the ------------------------------------------------ event that any Person entitled to indemnification under this Agreement (an "Indemnified Party") asserts a claim for indemnification or receives notice of the assertion of any claim or of the commencement of any action or proceeding by any Person who is not a party to this Agreement or an affiliate of a party to this Agreement (a "Third Party Claim") against such Indemnified Party, against which a party to this Agreement is required to provide indemnification under this Agreement (an "Indemnifying Party"), the Indemnified Party shall give written notice together with a statement of any available information (other than privileged information) regarding such claim to the Indemnifying Party within 30 days after learning of such claim (or within such shorter time as may be necessary to give the Indemnifying Party a reasonable opportunity to respond to such claim). The Indemnifying Party shall have the right, upon written notice to the Indemnified Party (the "Defense Notice") within 15 days after receipt from the Indemnified Party of notice of such claim, which notice by the Indemnifying Party shall specify the counsel it will appoint to defend such claim ("Defense Counsel"), to conduct at its expense the defense against such claim in its own name, or if necessary in the name of the Indemnified Party; provided, however, that the Indemnified Party shall have the right to approve the Defense Counsel, which approval shall not be unreasonably withheld or delayed, and in the event the Indemnifying Party and the Indemnified Party cannot agree upon such counsel within 10 days after the Defense Notice is provided, then the Indemnifying Party shall propose an alternate Defense Counsel, which shall be subject again to the Indemnified Party's approval which approval shall not be unreasonably withheld or delayed. If the parties still fail to agree on the Defense Counsel, then, at such time, they shall mutually agree in good faith on a procedure to determine the Defense Counsel.
(a) In the event that any party (the “Indemnifying Party shall fail to give the Defense Notice within such 15 day period, it shall be deemed to have elected not to conduct the defense of the subject claim, and in such event the Indemnified Person”) desires Party shall have the right to make a conduct the defense and to compromise and settle the claim against any without prior consent of the Indemnifying Party and the Indemnifying Party will be liable for all reasonable costs, expenses, settlement amounts or other party (the “Indemnifying Person”) Losses paid or incurred in connection therewith.
(b) In the event that the Indemnifying Party does deliver a Defense Notice and thereby elects to conduct the defense of the subject claim, the Indemnifying Party shall be entitled to have the exclusive control over the defense and settlement of the subject claim and the Indemnified Party will cooperate with and make available to the Indemnifying Party such assistance and materials as it may reasonably request, all at the expense of the Indemnifying Party; the Indemnified Party shall have the right at its expense to participate in the defense assisted by counsel of its own choosing. In such an event, the Indemnifying Party will not settle the subject claim without the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld or delayed.
(c) Without the prior written consent of the Indemnified Party, the Indemnifying Party will not enter into any Losses settlement of any Third Party Claim or cease to defend against such claim, if pursuant to or as a result of such settlement or cessation, (i) injunctive relief or specific performance would be imposed against the Indemnified Party, or (ii) such settlement or cessation would lead to liability or create any financial or other obligation on the part of the Indemnified Party for which the Indemnified Person Party is not entitled to indemnification hereunder.
(d) If an Indemnified Party refuses to consent to a bona fide offer of settlement which provides for a full release of the Indemnified Party and its affiliates and solely for a monetary payment which the Indemnifying Party wishes to accept, the Indemnified Party may seek indemnification hereunder in respect continue to pursue such matter, free of any participation by the Indemnifying Party, at the sole expense of the Indemnified Party. In such an event, the obligation of the Indemnifying Party shall be limited to the amount of the offer of settlement which the Indemnified Party refused to accept plus the costs and expenses of the Indemnified Party incurred prior to the date the Indemnifying Party notified the Indemnified Party of the offer of settlement.
(e) Notwithstanding clause (b) above, the Indemnifying Party shall not be entitled to control, but may participate in, and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim (i) that seeks a claim temporary restraining order, a preliminary or demand made by any Person not a party to this Agreement permanent injunction or specific performance against the Indemnified Person Party, (ii) to the extent such claim involves criminal allegations against the Indemnified Party, (iii) that if unsuccessful, would set a “Third-precedent that would materially interfere with, or have a material adverse effect on, the business or financial condition of the Indemnified Party Claim”)or (iv) if such claim would impose liability on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder. In such an event, such Indemnified Person must notify the Indemnifying Person in writing, Party will still have all of its obligations hereunder provided that the Indemnified Party will not settle the subject claim without the prior written consent of the Third-Indemnifying Party, which consent will not be unreasonably withheld or delayed.
(f) Any final judgment entered or settlement agreed upon in the manner provided herein shall be binding upon the Indemnifying Party, and shall conclusively be deemed to be an obligation with respect to which the Indemnified Party Claim is entitled to prompt indemnification hereunder.
(a “Third-g) A failure by an Indemnified Party Claim Notice”) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice of the Third-Party Claim; provided, that failure to give a Third-Party Claim Notice on a timely basis shall timely, complete or accurate notice as provided in this Section 7.4 will not affect the indemnification provided rights or obligations of any party hereunder except and only to the extent the Indemnifying Person shall have been actually and materially prejudiced that, as a result of such failure. Upon receipt , any party entitled to receive such notice was deprived of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the its right to approve recover any payment under its applicable insurance coverage or reject the settlement was otherwise directly and related expenses; provided, however, that upon rejection of any settlement and related expenses, the Indemnified Person shall assume control of the defense materially damaged as a result of such Third-Party Claim and the liability of the Indemnifying Person with respect to such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails failure to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such timely notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party Claim.
Appears in 1 contract
Indemnification Procedure for Third Party Claims. (a) In Promptly, and in any event within 30 days after the event that receipt by any party hereto of notice of any claim or the commencement of any action or proceeding by a third party, such party will, if a claim with respect thereto is to be made against any party obligated to provide indemnification hereunder (the “Indemnified Person”) desires to make a claim against any other party (the “"INDEMNIFYING Party"), give such Indemnifying Person”) in connection with any Losses for which the Indemnified Person may seek indemnification hereunder in respect Party written notice of a such claim or demand made by the commencement of such action or proceeding, but any Person not a party failure to this Agreement against the Indemnified Person (a “Third-Party Claim”), such Indemnified Person must timely notify the Indemnifying Person in writing, of the Third-Party Claim (a “Third-Party Claim Notice”) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice of the Third-Party Claim; provided, that failure to give a Third-Party Claim Notice on a timely basis shall not affect relieve the indemnification provided Indemnifying Party of its obligations hereunder except to the extent it was actually prejudiced thereby. Upon unconditional and unqualified written acknowledgment of the Indemnified Party's entitlement to indemnification therefor and if the Indemnifying Person shall have been actually and materially prejudiced as a result of Party has sufficient resources to pay any final judgment, such failure. Upon receipt of the Third-Indemnifying Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the settlement and related expenses; provided, however, that upon rejection of any settlement and related expenses, the Indemnified Person shall assume control of the defense of such Third-Party Claim and the liability of the Indemnifying Person with respect to such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person mayright, at its option, continue to defend such Third-Party Claim andsettle, in such eventcompromise or defend, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in counsel, any such claim, action or proceeding involving the defense asserted liability of the party seeking such indemnification (the "INDEMNIFIED PARTY"), provided that the Indemnifying Party shall not settle, compromise or consent to the entry of any Third-Party Claim judgment in any pending or threatened claim, action or proceeding except with the defense consent of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person Party (which consent shall furnish not be unreasonably withheld or delayed). If the Indemnifying Person with written notice of any proposed settlement in sufficient time Party fails to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes assume the defense of such Third-claim, action or proceeding within 30 days of receipt of notice of such claim, action or proceeding, or if at any time the Indemnifying Party Claim; and (c) takes shall fail to defend in good faith any such other actions as claim, action or proceeding, the Indemnified Person Party may reasonably request assume the defense thereof and may employ counsel with respect thereto and all fees and expenses of such counsel shall be paid by the Indemnifying Party, and the Indemnified Party may conduct and defend such claim, action or proceeding in such manner as assurance it may deem appropriate, subject, however, to the last sentence of this Section 11.05. If any Indemnifying Party undertakes to compromise, settle or defend any such asserted liability, it shall promptly notify the Indemnified Party of its intention to do so, and the Indemnified Party agrees to cooperate fully with the Indemnifying Party and its counsel in the compromise of, or defense against, any such asserted liability. The Indemnified Party may appoint, at its own expense, associate counsel to participate in the joint defense of any such matter with respect to which the Indemnifying Party has undertaken the defense, and the Indemnifying Party may appoint, at its own expense, associate counsel to participate in the joint defense of any such matter which the Indemnified Party is defending. No Indemnified Party shall settle, compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding except with the consent of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party Claim(which consent shall not be unreasonably withheld or delayed).
Appears in 1 contract
Indemnification Procedure for Third Party Claims. (a) In the event that of the initiation of any party (legal proceeding against an Indemnitee by a third party, the “Indemnified Person”) desires Indemnitor will have the absolute right after the receipt of notice, at its option and at its own expense, to make a claim against any other party (the “Indemnifying Person”) in connection be represented by counsel of its choice, and to defend against, negotiate, settle or otherwise deal with any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a proceeding, claim or demand made by which relates to any Person not a party to this Agreement loss, liability or damage indemnified against the Indemnified Person (a “Third-Party Claim”), such Indemnified Person must notify the Indemnifying Person in writing, of the Third-Party Claim (a “Third-Party Claim Notice”) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice of the Third-Party Claim; provided, that failure to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Person shall have been actually and materially prejudiced as a result of such failure. Upon receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the settlement and related expenseshereunder; provided, however, that upon rejection the Indemnitee may participate in any such proceeding, with counsel of its choice and at its expense. The parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any settlement such legal proceeding, claim or demand. To the extent the Indemnitor elects not to defend such proceeding, claim or demand, and related expensesthe Indemnitee defends against or otherwise deals with any such proceeding, claim or demand, the Indemnified Person shall assume Indemnitee may retain counsel, at the Indemnitor's expense, and control of the defense of such Third-Party Claim proceeding. Neither the Indemnitor nor the Indemnitee may settle any such proceeding without the consent of the other party, such consent not to be unreasonably withheld. After any final judgment or award has been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the liability time in which to appeal therefrom has expired, or a settlement has been consummated, or the Indemnitee and the Indemnitor have arrived at a mutually binding agreement with respect to each separate matter alleged to be indemnified by the Indemnitor hereunder, the Indemnitee will forward to the Indemnitor notice of the Indemnifying Person any sums due and owing by it with respect to such Third-Party Claim shall be limited matter and the Indemnitor will pay all of the sums so owing to the amount Indemnitee by wire transfer, certified or the monetary equivalent of the rejected settlement and related expenses.
bank cashier's check within thirty (b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (1530) days after the giving date of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party Claim.
Appears in 1 contract
Sources: Customer Referral and Support Agreement (Enterbank Holdings Inc)
Indemnification Procedure for Third Party Claims. In the event that subsequent to the Closing any person or entity entitled to indemnification under this Agreement (an "Indemnified Party") asserts a claim for indemnification or receives notice of the assertion of any claim or of the commencement of any action or proceeding by any entity who is not a party to this Agreement or an Affiliate of such a party (including, but not limited to any Governmental Entity (a "Third Party Claim") against such Indemnified Party, against which a Party is required to provide indemnification under this Agreement (an "Indemnifying Party"), the Indemnified Party shall give written notice together with a statement of any available information regarding such claim to the Indemnifying Party within thirty (30) days (or fifteen (15) days in the case of any third party claims relating to Taxes) after learning of such claim (or within such shorter time as may be necessary to give the Indemnifying Party a reasonable opportunity to respond to such claim). The Indemnifying Party shall have the right, upon written notice to the Indemnified Party (the "Defense Notice") within thirty (30) days after receipt from the Indemnified Party of notice of such claim, (which notice by the Indemnifying Party shall specify the counsel it will appoint at its own expense and in its sole discretion to defend such claim ("Defense Counsel")), to conduct at its expense the defense against such claim in its own name, or if necessary in the name of the Indemnified Party.
(a) In the event that the Indemnifying Party shall fail to give such notice, it shall be deemed to have elected not to conduct the defense of the subject claim, and in such event the Indemnified Party shall have the right to conduct such defense in good faith and to compromise and settle the claim in its reasonable discretion, provided, however that any party (settlement of a Third Party Claim shall require the “Indemnified Person”) desires to make a claim against any consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed and the Indemnifying Party will be liable for all costs, expenses, settlement amounts or other party (the “Indemnifying Person”) Losses paid or incurred in connection with any Losses for which therewith.
(b) In the event that the Indemnifying Party does elect to conduct the defense of the subject claim, the Indemnified Person Party will cooperate with and make available to the Indemnifying Party such assistance and materials as may seek indemnification hereunder in respect be reasonably requested by it, all at the expense of a claim or demand made by any Person not a party to this Agreement against the Indemnifying Party, and the Indemnified Person Party shall have the right at its expense to participate in the defense assisted by counsel of its own choosing. The Indemnifying Party shall not enter into any settlement of any Third Party Claim or consent to any entry of judgment without the consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed, except (i) a “Thirdsettlement that includes as an unconditional term thereof the giving by the 45 person or persons asserting such Third Party Claim to all Indemnified Parties an unconditional release from liability or (ii) a settlement or judgment providing solely for a monetary award in the full amount of the item in controversy which is indemnified in full hereunder and such settlement is paid directly out of the Post-Party Claim”)Closing Escrow Deposit by the Escrow Agent or paid or otherwise provided for by one or more Sellers, such as applicable, in accordance with Section 8.2. Without the prior written consent of the Indemnified Person must notify Party, the Indemnifying Person in writing, Party will not enter into any settlement of the Third-any Third Party Claim (a “Third-Party Claim Notice”) as promptly as reasonably possible after receiptor cease to defend against such claim, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice of the Third-Party Claim; provided, that failure if pursuant to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Person shall have been actually and materially prejudiced or as a result of such failure. Upon receipt settlement or cessation, (x) injunctive or other equitable relief would be imposed against the Indemnified Party or its Affiliates, (y) such settlement or cessation would lead to liability or create any financial or other obligation on the part of the Third-Indemnified Party Claim Notice from or its Affiliates for which the Indemnified PersonParty is not entitled to indemnification hereunder or (z) such settlement or cessation would, individually or taken together with any other settlement or cessation made pursuant to this Section 8.4(b)(z), reduce the aggregate adjusted tax basis, as determined for Federal income tax purposes, and determined as of immediately prior to the Closing, of the assets of M&M, MWS, Nevada and any Subsidiaries of M&M, MWS and Nevada, for any taxable period ending after the Closing Date by One Million Dollars ($1,000,000) or more. If a firm offer is made to settle a Third Party Claim, which offer the Indemnifying Party is permitted to settle pursuant to the preceding sentence, and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Person shall be entitled, at Party will give written notice to the Indemnified Party to that effect. To the extent that the acceptance by the Indemnifying Person’s electionParty of such offer would require the consent of the Indemnified Party, to assume or participate in if the defense of any Third-Indemnified Party Claim at the cost of Indemnifying Person. In any case in which notifies the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten that it does not wish such offer to be accepted within twenty (1020) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the settlement and related expenses; provided, however, that upon rejection days after its receipt of any settlement and related expensessuch notice, the Indemnified Person shall assume control of the defense of Party may elect by such Third-Party Claim and the liability of the Indemnifying Person with respect to such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse notice to the Indemnifying Person.
(c) If the Indemnifying Person fails Party to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to contest or defend such Third-Third Party Claim and, in such event, the maximum liability of the Indemnifying Person shall indemnify Party as to such Third Party Claim will not exceed the Indemnified Person for all reasonable fees amount of such settlement offer, plus costs and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses paid or incurred by the Indemnified Person in connection with such Claim; (b) assumes Party through the defense end of such Third-Party Claim; and twenty (20) day period.
(c) takes such other actions as Any judgment entered or settlement agreed upon in the manner provided herein shall be binding upon the Indemnifying Party, and shall conclusively be deemed to be an obligation with respect to which the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability Party is entitled to fulfill its obligations under this Article 10 in connection with such Third-Party Claimprompt indemnification hereunder.
Appears in 1 contract
Sources: Unit and Stock Purchase and Sale Agreement (Chancellor Media Corp of Los Angeles)
Indemnification Procedure for Third Party Claims. (a) In the event that If any party (the “Indemnified Person”) desires to make a action or claim against any other party (the “Indemnifying Person”) in connection with any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim or demand made by any Person not a party to this Agreement against the Indemnified Person (a “"Third-Party Claim”") is commenced against any Buyer Indemnitee or Seller Indemnitee (in any case, an "Indemnitee"), such Indemnified by a Person must other than an Indemnitee, for which an Indemnitee is entitled to seek and does seek indemnification from one or more of the Indemnitors under Section 7.1 or 7.2 (collectively, as appropriate, the "Indemnitors"), the Indemnitee shall notify the Indemnifying Person Indemnitor in writing, writing and summarize the nature of the Third-Party Claim (and the basis upon which it appears to have been asserted. Any delay in giving such a “Third-Party Claim Notice”) as promptly as reasonably possible after receiptnotice shall not affect the rights of the Indemnitee under this Article VII, but in no event later than fifteen (15) calendar days after receipt, by unless and then only to the extent the Indemnitor demonstrates that such Indemnified Person delay prejudiced the rights of notice of the Indemnitor with respect to the Third-Party Claim; provided. Within 10 days after an Indemnitee gives such a notice, that failure the Indemnitor shall notify the Indemnitee in writing whether the Indemnitor elects to give a defend the Third-Party Claim Notice on a timely basis Claim. If the Indemnitor so elects to defend, it shall do so but shall not affect the indemnification provided hereunder except to the extent the Indemnifying Person shall have been actually and materially prejudiced as a result of such failure. Upon receipt of settle or compromise the Third-Party Claim Notice from without the Indemnified PersonIndemnitee's prior written consent. If the Indemnitor does not so elect to defend or fails to defend, the Indemnifying Person Indemnitee shall be entitled, at the Indemnifying Person’s electionbut not obligated, to assume defend. Irrespective of whether the Indemnitor defends or participate in the defense of any Third-Party Claim at Indemnitee defends, the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense Indemnitor shall pay and currently fund all costs and expenses of the Third-Party Claimdefense. Moreover, if the Indemnitor does not so elect to defend or fails to defend, the Indemnifying Person shall give Indemnitee, after giving the Indemnified Person ten (10) calendar Indemnitor at least five days’ ' prior written notice prior of its intention to executing any settlement agreement and proceed with a settlement, need not consult the Indemnified Person shall have the right to approve or reject the settlement and related expenses; provided, however, that upon rejection of Indemnitor regarding any settlement and related expenses, the Indemnified Person shall assume control of the defense of such Third-Party Claim and the liability of the Indemnifying Person nevertheless retain all rights to indemnification with respect to such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected that settlement and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses that are otherwise provided in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party ClaimVII.
Appears in 1 contract
Indemnification Procedure for Third Party Claims. (a) In the event that subsequent to the Closing any party Buyer Indemnified Party or Seller Indemnified Party (each, an "Indemnified Party") receives notice of the “Indemnified Person”) desires to make a claim against assertion of any other party (the “Indemnifying Person”) in connection with any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim or demand made of the commencement of any action, suit or proceeding by any Person person or entity which is not a party to this Agreement (including, without limitation, any Governmental Authority) (a "Third Party Claim") against such Indemnified Party, with respect to which the Buyer or the Seller (the "Indemnifying Party"), as the case may be, are required to provide indemnification under this Agreement, the Indemnified Person Party shall promptly give written notice, together with a statement of any available information regarding such claim (a “Third-collectively, the "Third Party Claim”Indemnification Notice"), such Indemnified Person must notify to the Indemnifying Person in writing, of the Third-Party Claim within thirty (a “Third-Party Claim Notice”30) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by learning of such Indemnified Person of notice of the Third-Party Claim; provided, that failure claim (or within such shorter time as may be necessary to give the Indemnifying Party a Third-reasonable opportunity to respond to such claim). The Indemnifying Party Claim Notice on a timely basis shall not affect have the indemnification provided hereunder except right, upon delivering written notice to the extent Indemnified Party (the Indemnifying Person shall have been actually and materially prejudiced as "Defense Notice") within thirty (30) days after receipt from an Indemnified Party of a result of such failure. Upon receipt of the Third-Third Party Claim Notice from the Indemnified PersonIndemnification Notice, the Indemnifying Person shall be entitledto conduct, at the Indemnifying Person’s electionParty's sole cost and expense, to assume or participate the defense against such Third Party Claim in the defense of any Third-Party Claim at Indemnifying Party's own name, or, if necessary, in the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense name of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the settlement and related expensesParty; provided, however, that upon rejection of any settlement and related expenses, the Indemnified Person Party shall assume control of have the right to reasonably approve the defense of such Third-counsel representing the Indemnifying Party, which approval shall not be unreasonably withheld, and in the event that the Indemnifying Party Claim and the liability of Indemnified Party cannot agree upon such counsel within ten (10) days after the Defense Notice is provided, then the Indemnifying Person with respect to such Third-Party Claim shall propose an alternate defense counsel, which shall be limited subject again to the amount or Indemnified Party's reasonable approval in accordance with the monetary equivalent of the rejected settlement and related expensesterms hereof.
(b) The In the event that the Indemnifying Party shall fail to give the Defense Notice within the time and as prescribed by Section 7.4(a) hereof, then in any such event the Indemnified Person Party shall retain have the right to employ its own conduct such defense in good faith with counsel and reasonably acceptable to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this AgreementParty, but the Indemnified Person Party shall bear be prohibited from compromising or settling any such claim without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld and shall be solely responsible for its own costs and expenses deemed given in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions the absence of the Indemnifying Person shall be final and providing the Indemnified Person shall cooperate Party with a written response within ten (10) days of any request therefor. If the Indemnifying Person in all respects in the defense of the Third-Indemnified Party Claim, including refraining from taking any position adverse fails to diligently defend such claim with counsel reasonably satisfactory to the Indemnifying PersonParty, or settles any such claim without the Indemnifying Party's prior written consent or otherwise breaches this Article VII, the Indemnified Party will be liable for all costs, expenses, settlement amounts or other Losses paid or incurred in connection therewith and the Indemnifying Party shall have no obligation to indemnify the Indemnified Party with respect to such claim.
(c) If In the event that the Indemnifying Person fails Party does deliver a Defense Notice and thereby elects to give notice of the assumption of conduct the defense of any Third-the subject Third Party Claim within a reasonable time period not Claim, the Indemnified Party will cooperate with and make available to exceed forty-five (45) days after receipt the Indemnifying Party such assistance and materials as the Indemnifying Party may reasonably request, all at the sole cost and expense of the Third-Party Claim Notice from Indemnifying Party. Regardless of which party defends such claim, the other party hereto shall have the right at its own cost and expense to participate in the defense assisted by counsel of its own choosing. Without the prior written consent of the Indemnified PersonParty, which consent shall not be unreasonably withheld, the Indemnifying Person shall no longer be Party will not enter into any settlement of any Third Party Claim if pursuant to or as a result of such settlement, such settlement would lead to liability or create any financial or other obligation on the part of the Indemnified Party for which the Indemnified Party is not entitled to assume indemnification hereunder. If a firm decision is made to settle a Third Party Claim, which offer the Indemnifying Party is permitted to settle under this Section 7.4(c), and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party will give at least five (but shall 5) days' prior written notice to the Indemnified Party to that effect, setting forth in reasonable detail the terms and conditions of any such settlement (the "Settlement Notice"). If the Indemnified Party objects to such firm offer within ten (10) calendar days after its receipt of such Settlement Notice, the Indemnified Party may continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to contest or defend such Third-Third Party Claim and, in such event, the maximum liability of the Indemnifying Person shall indemnify Party as to such Third Party Claim will not exceed the Indemnified Person for all reasonable fees amount of such settlement offer described in the Settlement Notice, plus costs and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses paid or incurred by the Indemnified Person in connection with such Claim; (b) assumes Party up to the defense point through the date of such Third-Settlement Notice. If an Indemnified Party Claim; and (c) takes such other actions as settles any Third Party Claim without the Indemnified Person may reasonably request as assurance prior written consent of the Indemnifying Person’s ability Party, the Indemnifying Party shall have no obligation to fulfill its obligations indemnify the Indemnified Party under this Article 10 in connection VII with respect to such Third-Third Party Claim.
(d) Any judgment entered or settlement agreed upon in the manner provided herein shall be binding upon the Indemnifying Party, and shall be conclusively deemed to be an obligation with respect to which the Indemnified Party is entitled to prompt indemnification hereunder, subject to the Indemnifying Party's right to appeal an appealable judgment or order. Such indemnification shall be required to be made no later than the tenth (10th) day following the expiration of any period in which an appeal may be taken, and shall be satisfied by payment of the amount thereof in cash.
Appears in 1 contract
Sources: Asset Purchase Agreement (Williams J B Holdings Inc)
Indemnification Procedure for Third Party Claims. (a) 9.3.1 In the event that subsequent to the Closing any party Person entitled to indemnification under this Agreement (an "INDEMNIFIED PARTY") receives notice of the “Indemnified Person”) desires to make a claim against assertion of any other party (claim, issuance of any order or the “Indemnifying Person”) in connection with commencement of any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim action or demand made proceeding by any Person who is not a party to this Agreement or an Affiliate of a party, including, without limitation, any domestic or foreign court or Governmental Authority (a "THIRD PARTY CLAIM"), against such Indemnified Party, against which a party to this Agreement is required to provide indemnification under this Agreement (an "INDEMNIFYING PARTY"), the Indemnified Person (Party shall give written notice thereof together with a “Third-Party Claim”), statement of any available information regarding such Indemnified Person must notify claim to the Indemnifying Person in writing, of the Third-Party Claim within thirty (a “Third-Party Claim Notice”30) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receiptlearning of such claim (or within such shorter time as may be necessary, by in the Indemnified Party's reasonable judgment, to give the Indemnifying Party a reasonable opportunity to respond to and defend such claim). The Indemnifying Party shall have the right, upon written notice to the Indemnified Person Party (the "DEFENSE NOTICE") within ten days (10) after receipt from the Indemnified Party of notice of such claim, to conduct at its expense the Third-Party Claimdefense against such claim in its own name, or if necessary in the name of the Indemnified Party; provided, however, that failure to give a Third-the -------- ------- Indemnified Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Person shall have been actually and materially prejudiced as a result of such failure. Upon receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the defense counsel selected by the Indemnifying Party, which approval shall not be unreasonably withheld, and in the event the Indemnifying Party and the Indemnified Party cannot agree upon such counsel within ten (10) days after the Defense Notice is provided, then the Indemnifying Party shall propose an alternate defense counsel, who shall be subject again to the Indemnified Party's approval.
9.3.2 In the event that the Indemnifying Party shall fail to timely give the Defense Notice, it shall be deemed to have elected not to conduct the defense of the subject claim, and in such event the Indemnified Party shall have the right to conduct such defense in good faith at the cost and expense of the Indemnifying Party and the Indemnifying Party shall reimburse the Indemnified Party for all costs, expenses and settlement and related expensesamounts actually paid in connection therewith; provided, however, that upon rejection of any settlement and related expenses, -------- ------- under no circumstances shall the Indemnified Person shall assume control of the defense of such Third-Party compromise or settle any Third Party Claim and without the liability prior written consent of the Indemnifying Person with respect to such Third-Party Claim shall be limited to (which, in the amount or the monetary equivalent case of the rejected settlement and related expensesPartners, may be granted by the Partner Representative (as defined in Section 9.13)), which consent shall not be ------------ unreasonably withheld or delayed.
(b) The Indemnified Person shall retain 9.3.3 In the right to employ its own counsel and to discuss matters with event that the Indemnifying Person related Party does elect to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in conduct the defense of the Third-subject claim, the Indemnified Party Claim, including refraining from taking any position adverse will cooperate with and make available to the Indemnifying Person.
(c) If Party such assistance and materials as may be reasonably requested by it, all at the expense of the Indemnifying Person fails Party, and the Indemnified Party shall have the right at its expense to give notice participate in the defense assisted by counsel of its own choosing, provided that the Indemnified Party shall have the right to compromise and settle the claim only with the prior written consent of the assumption Indemnifying Party, which consent shall not be unreasonably withheld or delayed. Without the prior written consent of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified PersonParty, the Indemnifying Person Party will not enter into any settlement of any Third Party Claim or cease to defend against such claim, if pursuant to or as a result of such settlement or cessation, (i) injunctive or other equitable relief would be imposed against the Indemnified Party, or (ii) such settlement or cessation would lead to liability or create any financial or other obligation on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder, or (iii) such settlement includes a written admission of guilt. The Indemnifying Party shall no longer not be entitled to assume (but control, and the Indemnified Party shall continue to be entitled to participate inhave sole control over, the defense or settlement of any claim (A) to the extent that claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party or (B) in a proceeding to which the Indemnifying Party is also a party and the Indemnified Party determines in good faith that joint representation would be inappropriate (and in each case the cost of such defensedefense shall constitute an amount for which the Indemnified Party is entitled to indemnification hereunder). The If an offer is made to settle a Third Party Claim which all parties to such Third Party Claim (including the Indemnifying Party) are prepared to settle and which offer the Indemnifying Party is permitted to settle under this Section 9.3.3 only ------------- upon the prior written consent of the Indemnified Person mayParty, at the Indemnifying Party will give prompt written notice to the Indemnified Party to that effect. If the Indemnified Party fails to consent to such firm offer within (30) calendar days after its optionreceipt of such notice, the Indemnified Party may continue to contest or defend such Third-Third Party Claim and, in such event, the maximum liability of the Indemnifying Person shall indemnify Party as to such Third Party Claim will not exceed the Indemnified Person for all reasonable fees amount of such settlement offer, plus costs and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses paid or incurred by the Indemnified Person in connection with such Claim; (b) assumes Party through the defense end of such Third-Party Claim; (30) day period.
9.3.4 Any judgment entered, order issued or settlement agreed upon in the manner provided herein shall be binding upon the Indemnifying Party, and (c) takes such other actions as shall conclusively be deemed to be an obligation with respect to which the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability Party is entitled to fulfill its obligations under this Article 10 in connection with such Third-Party Claimprompt indemnification hereunder.
Appears in 1 contract
Indemnification Procedure for Third Party Claims. (a) In the event that any party a Seller Indemnified Party or Buyer Indemnified Party (as the case may be, the “Indemnified PersonParty”) desires to make a claim against any other party (the “Indemnifying Person”) under Article 8 in connection with any Losses action, suit, proceeding or demand at any time instituted against or made upon such Indemnified Party by any third party (a “Third Party Claim”) for which the such Indemnified Person Party may seek indemnification hereunder from Seller, in respect the case of a claim Buyer Indemnified Party, or demand made by any Person not Buyer, in the case of a party to this Agreement against Seller Indemnified Party (each such notified party, the Indemnified Person (a “Third-Party ClaimControl Party”), it shall deliver written notice to the Control Party specifying the facts underlying such Indemnified Person must Third Party Claim and the amount demanded or claimed, to the extent known (the “Defense Notice”). The Control Party shall have thirty (30) days after receipt of a Defense Notice to notify the Indemnifying Person Indemnified Party in writingwriting that (i) it may be liable under the provisions hereof for indemnity in the amount of such claim if such claim were successful, (ii) it disputes and intends to defend against such claim, liability or expense at its own cost and expense, and (iii) that it has elected to undertake, conduct and control, through counsel of its own choosing (subject to the consent of the Third-Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed), and at its sole expense, the good faith settlement or defense of such Third Party Claim, and the Indemnified Party shall cooperate with the Control Party in connection therewith; provided, that (a) the settlement of a Third Party Claim by the Control Party shall require the prior reasonable consultation with the Indemnified Party and the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed, and (a “Third-b) the Indemnified Party shall be entitled to participate in such settlement or defense through counsel chosen by the Indemnified Party, provided that the fees and expenses of such counsel shall be borne by the Indemnified Party. So long as the Control Party is contesting any such Third Party Claim Notice”) as promptly as reasonably possible after receiptin good faith, but in no event later than fifteen (15) calendar days after receipt, by the Indemnified Party shall not pay or settle any such Indemnified Person of notice of the Third-Third Party Claim; provided, however, that notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such Third Party Claim at any time, provided that in such event it shall waive any right of indemnification therefor (whether from the Escrow Account or otherwise) pursuant to this Article 8. If the Control Party does not make a timely election to undertake the good faith defense or settlement of the Third Party Claim as aforesaid, or if the Control Party fails to proceed with the good faith defense or settlement of the matter after making such election, then, in either such event, the Indemnified Party shall have the right to contest, settle or compromise such Third Party Claim (provided that all settlements or compromises require the prior reasonable consultation with the Control Party and the prior written consent of the Control Party, which consent shall not be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing, the Control Party shall not be entitled to assume control of such defense (unless otherwise agreed to in writing by the Indemnified Party) and shall pay the fees and expenses of counsel retained by the Indemnified Party if (1) the claim for indemnification relates to or arises in connection with any criminal or quasi-criminal proceeding, action, indictment, allegation or investigation; (2) the Indemnified Party reasonably believes (based upon written advice of qualified outside counsel) an adverse determination with respect to the action, lawsuit, investigation, proceeding or other claim giving rise to such claim for indemnification would be materially detrimental to or cause serious injury to the Indemnified Party’s reputation; (3) the claim seeks an injunction or equitable relief against the indemnified party; (4) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnified Party and the Control Party with respect to such matter; or (5) upon petition by the Indemnified Party, the appropriate court rules that the Control Party failed or is failing to vigorously prosecute or defend such claim.
(b) A failure by an Indemnified Party to give a Third-Party Claim Notice on a timely basis shall timely, complete or accurate notice as provided in this Section 8.4 will not affect the indemnification provided rights or obligations of any party hereunder except and only to the extent the Indemnifying Person shall have been actually and materially prejudiced that, as a result of such failure. Upon receipt , any party entitled to receive such notice was deprived of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the its right to approve recover any payment under its applicable insurance coverage or reject the settlement was otherwise directly and related expenses; provided, however, that upon rejection of any settlement and related expenses, the Indemnified Person shall assume control of the defense materially damaged as a result of such Third-Party Claim and the liability of the Indemnifying Person with respect to such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails failure to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such timely notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party Claim.
Appears in 1 contract
Indemnification Procedure for Third Party Claims. (a) In the event that any claim or demand, or other circumstance or state of facts which could give rise to any claim or demand, for which an Indemnitor may be liable to an Indemnitee hereunder is asserted or sought to be collected by a third party (the “Indemnified Person”) desires to make a claim against any other party (the “Indemnifying Person”) in connection with any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim or demand made by any Person not a party to this Agreement against the Indemnified Person (a “Third-Third Party Claim”), such Indemnified Person must the Indemnitee shall as soon as practicable notify the Indemnifying Person Indemnitor in writing, writing of the Third-such Third Party Claim (a “Third-Party Notice of Claim”). The Notice of Claim Notice”shall (i) as promptly as reasonably possible after receiptstate that the Indemnitee has paid or properly accrued Losses or anticipates that it will incur liability for Losses for which such Indemnitee is entitled to indemnification pursuant to this Agreement, but and (ii) specify in no event later than fifteen (15) calendar days after receiptreasonable detail each individual item of Loss included in the amount so stated, by the date such Indemnified Person of notice item was paid or properly accrued, the basis for any anticipated liability and the nature of the Third-misrepresentation, breach of warranty, breach of covenant or claim to which each such item is related and the computation of the amount to which such Indemnitee claims to be entitled hereunder. The Indemnitee shall enclose with the Notice of Claim a copy of all papers served with respect to such Third Party Claim; provided, that failure if any, and any other documents evidencing such Third Party Claim. Failure to give a Third-Party Claim Notice on a timely basis notice in accordance with the foregoing shall not affect the indemnification provided hereunder Indemnitor’s obligations hereunder, except to the extent the Indemnifying Person shall Indemnitor is prejudiced by such failure.
(b) Subject to anything in this Section 10.4(b) to the contrary, the Indemnitor will have been actually and materially prejudiced as a result thirty (30) days from the date on which the Indemnitor received the Notice of Claim to notify the Indemnitee that the Indemnitor desires to assume the defense or prosecution of such failure. Upon receipt of the Third-Third Party Claim Notice and any litigation resulting therefrom, with counsel of its choice and at its sole cost and expense (a “Third party Defense”), provided, that the Indemnitee shall in any event be entitled to take such actions as are reasonably necessary to avoid prejudicing the Indemnitee’ s right with respect to such Third party Claim during such 30-day period while it awaits notice from the Indemnified PersonIndemnitor. If the Indemnitor assumes the Third Party Defense in accordance herewith, (i) the Indemnifying Person shall Indemnitor will be entitleddeemed to have waived its right to dispute its liability to the Indemnitee with respect to any Third party Claim as to which it elects to control the defense, (ii) the Indemnitee may retain separate co-counsel at the Indemnifying Person’s election, to assume or its sole cost and expense and participate in the defense of any Third-the Third Party Claim, except that the Indemnitor will pay the reasonable costs and expenses of separate counsel if (A) in the Indemnitee’s good faith judgment, it is advisable, based on an opinion of counsel, for the Indemnitee to be represented by separate counsel because a conflict or potential conflict exists between the Indemnitee and the Indemnitor or (B) the named parties to such Third Party Claim include both the Indemnitee and the Indemnitor and the Indemnitee determines in good faith, based on any opinion of counsel, that defenses which could materially affect the outcome of the Third Party Claim are available to it that are unavailable to the Indemnitor, but the Indemnitor shall control the investigation, defense and settlement thereof, (iii) the Indemnitee will not file any papers or consents to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnitor, which consent shall not be unreasonably delayed or withheld and (iv) the Indemnitor will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim to the extent such judgment or settlement provides for equitable relief without the prior written consent of the Indemnitee, which consent shall not be unreasonably delayed or withheld. Notwithstanding the foregoing, the Indemnitee may retain or take over the control of the defense or settlement of any Third Party Claim, at the cost of Indemnifying Person. In any case point in which the Indemnifying Person assumes time, the defense of which the Third-Indemnitor has elected to control if the Indemnitee irrevocably waives its right to indemnity under this Article X with respect to such Third Party Claim. The Parties will use commercially reasonable efforts to minimize Losses from Third Party Claims and will act in good faith in responding to, defending against, settling or otherwise dealing with such claims. The Parties will also cooperate in any such defense and give each other reasonable access to all information relevant thereto. Whether or not the Indemnitor has assumed the Third Party Defense, such Indemnitor will not be obligated to indemnity the Indemnitee hereunder for any settlement entered into or any judgment that was consented to without the Indemnitor’s prior written consent (which consent shall not be unreasonably delayed or withheld) or in the event the Indemnitee irrevocably waives its right to indemnity under this Article X with respect to such Third Party Claim. Notwithstanding the foregoing, Seller may elect to control, at its own expense, the Indemnifying Person conduct of any audit or administrative or judicial proceeding with respect to any Taxes of, or any Tax Return required to be filed by or with respect to, the Company with respect to any Seller Taxes (other than Taxes of the Company in respect of a Straddle Period or any Buyer Transfer Taxes) if Seller acknowledges in writing that Seller has sole responsibility for any Seller Taxes that arise in such audit or proceeding that is controlled by Seller, provided, however, that Seller shall give not resolve, abandon, compromise or settle any such audit or proceeding without obtaining Buyer’s prior written consent (which consent may not be unreasonably withheld, conditioned or delayed) if it would reasonably be expected to have a materially adverse effect on Buyer, the Indemnified Person ten Company or any Affiliate thereof with respect to any Tax Period ending after the Closing Date; provided further, however, that (10i) calendar days’ notice prior to executing any settlement agreement Seller shall keep Buyer reasonably apprised of the status of the audit or proceeding, and the Indemnified Person (ii) Buyer shall have the right right, at its own expense, to approve retain separate counsel and to reasonably participate in (but not control) such Tax audit or reject proceeding. Buyer shall control, at its own expense, the settlement and related expensesconduct of any audit or administrative or judicial proceeding with respect to any Taxes of, or any Tax Return required to be filed by or with respect to, the Company with respect to any Straddle Period; provided, however, that upon rejection of Buyer shall not resolve, abandon, compromise or settle any settlement and related expensessuch audit or proceeding without obtaining Seller’s prior written consent (which consent may not be unreasonably withheld, conditioned or delayed) if it would reasonably be expected to have a materially adverse effect on Seller, the Indemnified Person shall assume control of the defense of such Third-Party Claim and the liability of the Indemnifying Person Company or any Affiliate thereof with respect to such Thirdany Pre-Party Claim Closing Tax Period; provide further, however, that (i) Buyer shall be limited to the amount or the monetary equivalent keep Seller reasonably apprised of the rejected settlement status of the audit or proceeding, and related expenses.
(bii) The Indemnified Person Seller shall retain have the right to employ right, at its own expense, to retain separate counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(areasonably participate in (but not control) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying PersonTax audit or proceeding.
(c) If the Indemnifying Person fails to give notice of Indemnitor does not assume the assumption of the defense of any Third-Third Party Claim Defense within a reasonable time period not to exceed forty-five thirty (4530) days after of receipt of the Third-Notice of Claim, or if the Indemnitor fails to prosecute diligently the Third Party Claim Notice from the Indemnified PersonClaim, the Indemnifying Person shall no longer Indemnitee will be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person maythe Third Party Defense, at its optionsole cost and expense (or, continue if the Indemnitee incurs a Loss with respect to defend such Third-Party Claim and, the matter in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim question for which the Indemnifying Person Indemnitee is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to indemnification pursuant to section 10.2 or 10.3, as applicable, at the expense of the Indemnitor) upon delivery of notice to such effect to the Indemnitor; provided that (i) the Indemnitor shall have the right to participate in the Third Party Defense at its own expense sole cost and with its own counsel expense, but the Indemnitee shall control the investigation, defense and settlement thereof, and (ii) in no event will the defense Indemnitee consent to the entry of any Third-judgment or enter into any settlement with respect to a Third Party Claim without the defense of Indemnitor’s prior written consent, which it does consent will not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party Claimunreasonably delayed or withheld.
Appears in 1 contract
Sources: Stock Purchase Agreement (Salix Pharmaceuticals LTD)
Indemnification Procedure for Third Party Claims. (a) In the event that Promptly after receipt by an Indemnified Party of notice from any third party (the “Indemnified Person”) desires to make a claim against any other party (the “Indemnifying Person”) in connection with any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim or demand in respect of which indemnity may be sought under Section 9.2 or 9.3 which is asserted against or sought to be collected from the Indemnified Party, including the commencement of any Action against it ("Third Party Claim"), the Indemnified Party shall, if a claim is to be made against an Indemnifying Party under such Section 9.2 or 9.3, as applicable, give notice to the Indemnifying Party of the Third Party Claim, but the failure to notify the Indemnifying Party will not relieve the Indemnifying Party of any Liability that it may have to any Indemnified Party, except to the extent that the Indemnifying Party demonstrates that the defense of such Third Party Claim is prejudiced by the Indemnifying Party's failure to receive such notice. Such notice shall be delivered in accordance with Section 11.1.
(b) If any Person not Third Party Claim referred to in Section 9.4(a) is brought against an Indemnified Party, the Indemnifying Party will be entitled to participate in any Action underlying the claim and, to the extent that it wishes (unless the Indemnifying Party is also a party to this Agreement against such Action and the Indemnified Person (a “Third-Party determines in good faith that joint representation would be inappropriate, in which event such Indemnified Party shall have the right to retain, at the Indemnifying Party's reasonable expense, one separate counsel, reasonably satisfactory to the Indemnifying Party, to defend such claim on behalf of such Indemnified Party), assume the defense of such claim with counsel reasonably satisfactory to the Indemnified Party, and, after notice from the Indemnifying Party to the Indemnified Party of its election to assume the defense of such Action, except in the circumstances described in the parenthetical above, the Indemnifying Party will not, as long as it diligently conducts such defense, be liable to the Indemnified Party under this Section 9.4 for any fees of other counsel or any other expenses with respect to the defense of such claim, in each case, subsequently incurred by the Indemnified Party in connection with the defense of such claim, other than reasonable costs of investigation. If the Indemnifying Party assumes the defense of the Third Party Claim”: (i) no compromise or settlement of such claim may be effected by the Indemnifying Party without the Indemnified Party's written consent unless (1) there is no finding or admission of any violation of Law by any Indemnified Party or any violation of the rights of any Person, (2) such settlement or compromise releases the Indemnified Party in connection with such Third Party Claim, (3) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party and (4) such settlement or compromise does not restrict in any manner the ability of the Indemnified Party to conduct its business; (ii) the Indemnified Party will have no Liability with respect to any compromise or settlement of such claim effected without its written consent; and (iii) the Indemnified Party shall have the right to participate in such defense and to employ counsel, in each case, at its own expense. Subject to Section 9.4(c), such Indemnified Person must notify if notice is given to an Indemnifying Party of any Third Party Claim and the Indemnifying Person in writingParty does not, of the Third-Party Claim (a “Third-Party Claim Notice”) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar within 35 days after receiptthe Indemnified Party's notice is given, give notice to the Indemnified Party of its election to assume the defense of such Action, the Indemnifying Party will be bound by any determination made in such Action or any compromise or settlement effected by the Indemnified Party and the Indemnifying Party will be responsible for any Losses incurred in connection with the defense, compromise, settlement or final determination of such Action.
(c) Notwithstanding the foregoing, if an Indemnified Party determines in good faith that there is a reasonable probability that an Action may adversely affect it or its Affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, except where nonmonetary relief is merely incidental to a primary claim or claims for monetary damages, the Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise or settle such Action (provided, that any costs or fees incurred by the Indemnified Party in connection with such defense, compromise or settlement shall be borne exclusively by such Indemnified Person Party), but the Indemnifying Party will not be bound by any determination of notice of the Third-Party Claiman Action so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld); provided, that failure to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Person Party shall have been actually the right to participate in such defense and materially prejudiced as a result of such failure. Upon receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person to employ counsel at its own expense.
(d) The parties shall be entitled, at the Indemnifying Person’s election, to assume or participate cooperate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the settlement and related expenses; provided, however, that upon rejection of any settlement and related expenses, the Indemnified Person shall assume control of the defense of such Third-Third Party Claim and the liability of the Indemnifying Person with respect to shall furnish such Third-Party Claim shall records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals as may be limited to the amount or the monetary equivalent of the rejected settlement and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses reasonably requested in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms provisions of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party ClaimIX.
Appears in 1 contract
Sources: Stock Purchase Agreement (Phillips Van Heusen Corp /De/)
Indemnification Procedure for Third Party Claims. In connection with any claim of a Third Party for which a Pfizer Indemnitee or Licensee Indemnitee (a) In either of the event that any party (foregoing, the “Indemnified PersonParty”) desires to make a claim against any seeks indemnification from the other party Party (the “Indemnifying PersonParty”) in connection with any Losses for which pursuant to this Agreement, the Indemnified Person may seek indemnification hereunder in respect of a claim or demand made by any Person not a party to this Agreement against the Indemnified Person Party shall: (a “Third-Party Claim”), such Indemnified Person must notify a) give the Indemnifying Person in writing, of the Third-Party Claim (a “Third-Party Claim Notice”) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of prompt written notice of the Third-Party Claim; providedclaim, that failure to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except amount or the estimated amount of damages sought under such claim to the extent the Indemnifying Person shall have been actually and materially prejudiced as a result of such failure. Upon receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s electionthen ascertainable and, to assume or participate in the defense of extent practicable, any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the settlement and related expensesother material details pertaining thereto; provided, however, that upon rejection failure to provide such notice or to include the foregoing information shall not relieve the Indemnifying Party from its liability or obligation hereunder, except to the extent of any material prejudice as a direct result of such failure; (b) cooperate with the Indemnifying Party, [***], in connection with the defense and settlement of the claim; and related expenses, (c) permit the Indemnified Person shall Indemnifying Party to assume control of the defense of such Third-Party Claim and the liability settlement of the Indemnifying Person with respect to such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claimclaim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation[***]; provided, however, thatthat the Indemnifying Party may not settle the claim without the Indemnified Party’s prior written consent, subject to Section 10.3(awhich shall not be unreasonably withheld, conditioned or delayed, unless such settlement (x) aboveprovides for the payment by the Indemnifying Party of money as sole relief for the claimant (other than as contemplated by the Deductible), all decisions (y) results in the full and general release of the Indemnifying Indemnified Party from all liabilities arising or resulting from such claim, and (z) involves no finding or admission of any violation of Applicable Law or the rights of any Person shall and does not have an effect on any other claims that may be final and made against the Indemnified Person Party. If the Indemnifying Party does not assume control of the defense and settlement of such claim, then the Indemnified Party shall cooperate control the defense and settlement of such claim with counsel of its selection, [***]. Either the Indemnified Party (if such claim is controlled by the Indemnifying Party) or the Indemnifying Party (if such claim is controlled by the Indemnified Party) shall have the right to participate (but not control) and be represented in any suit or action by advisory counsel of its selection [***]. Notwithstanding the foregoing, if the Indemnifying Party assumes control of the defense and settlement of such claim, the Indemnified Party will have the right to employ separate counsel, [***], in connection with the Indemnifying Person in all respects in the defense and settlement of the Third-claim if: (i) there are or may be legal defenses available to the Indemnified Party Claim, including refraining that are different from taking any position adverse or additional to those available to the Indemnifying Person.
Party; or (cii) If in the reasonable opinion of counsel to the Indemnified Party, a conflict or potential conflict exists between the Indemnified Party and Indemnifying Person fails to give notice of Party that would make such separate representation advisable. In the assumption of event that the Indemnified Party controls the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claimclaim, the Indemnified Person shall furnish Party may not settle such claim without the Indemnifying Person with Party’s prior written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such noticeconsent, the Indemnified Person which shall not be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party Claimunreasonably withheld, conditioned or delayed.
Appears in 1 contract
Sources: License and Collaboration Agreement (Roivant Sciences Ltd.)
Indemnification Procedure for Third Party Claims. (a) In the event that subsequent to the Closing, an Indemnitee receives notice of the issuance of any party (Order or the “Indemnified Person”) desires to make a claim against assertion or commencement of any other party (the “Indemnifying Person”) in connection with any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim or demand made Proceeding by any Person Person, including any Governmental Entity, who is not a party Party to this Agreement against the Indemnified Person (a “Third-Third Party Claim”), against such Indemnified Person must notify the Indemnifying Person in writingIndemnitee, of the Third-and if such Indemnitee intends to seek indemnity with respect to such Third Party Claim (a “Third-Party Claim Notice”) under this Article 7, the Indemnitee shall give written notice thereof regarding such claim to the Indemnitor as promptly soon as reasonably possible practicable after receipt, but in no event later than fifteen (15) calendar days after receipt, by learning of such Indemnified Person of notice of the Third-Party Claimclaim; provided, that the failure to give a Third-Party Claim Notice on a timely basis so notify an Indemnitor shall not affect relieve the indemnification provided Indemnitor of its obligations hereunder except and only to the extent the Indemnifying Person shall have been Indemnitor is actually and materially prejudiced as a result of such failurethereby. Upon receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person The Indemnitor shall be entitled, at the Indemnifying Person’s election, entitled to assume or participate in the defense of any Third-such Third Party Claim giving rise to Indemnitee’s claim for indemnification at Indemnitor’s expense, and at its option (subject to the cost of Indemnifying Personlimitations set forth below) by appointing a counsel reasonably acceptable to the Indemnitee to be the lead counsel in connection with such defense. In any case in which Notwithstanding the Indemnifying Person assumes the defense of the Third-Party Claimforegoing, the Indemnifying Person Indemnitor shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall not have the right to approve control the defense, compromise or reject the settlement and related expenses; provided, however, that upon rejection of any settlement and related expenses, claim (or continue the Indemnified Person shall assume control of defense) (1) unless the defense of Indemnitor provides the Indemnitee with evidence reasonably acceptable to the Indemnitee that the Indemnitor will have the financial resources to vigorously defend against such Third-Third Party Claim and fulfill its indemnification obligations hereunder, (2) unless such Third Party Claim involves only monetary damages and does not seek an injunction or other equitable relief, (3) the liability amount of money damages attributable to such Third Party Claim does not involve an amount in excess of the Indemnifying Person with respect to such Third-Party Claim shall be limited remaining portion of the General Cap or the Purchase Price Cap, as applicable, available to the amount or the monetary equivalent of the rejected settlement and related expenses.
(b) The Indemnified Person shall retain the right Buyer Indemnitees to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with satisfy such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Third Party Claim, including refraining any Losses to be incurred with respect thereto, (4) if the Indemnitee has been advised by counsel that a conflict of interest exists which, under applicable principles of legal ethics, would prohibit a single legal counsel from taking representing both the Indemnitee and the Indemnitor in such matter, (5) if such matter is made by (or otherwise involves) any position adverse of the Company’s or Buyer’s material business relations, or (6) if such Third Party Claim involves a criminal or quasi criminal proceeding, action, indictment, allegation or investigation or would give rise to indemnification hereunder for fraud or intentional misrepresentation. Notwithstanding anything to the Indemnifying Person.
(c) If contrary in this Section 7.2(d)(iii), the Indemnifying Person fails to give notice of the assumption of the defense control of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person Tax Contest shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred governed exclusively by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party ClaimSection 8.7(f).
Appears in 1 contract
Sources: Unit Purchase Agreement (Streamline Health Solutions Inc.)
Indemnification Procedure for Third Party Claims. (a) In the event that any party (the “Indemnified Person”) desires to make a claim against any other party (the “Indemnifying Person”) in connection with any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim or demand made by any Person not a party to this Agreement against the Indemnified Person (a “Third-Party Claim”), such Indemnified Person must notify the Indemnifying Person in writing, of the Third-Party Claim (a “Third-Party Claim Notice”) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice of the Third-Party Claim; provided, that failure to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Person shall have been actually and materially prejudiced as a result of such failure. Upon receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the settlement and related expenses; provided, however, that upon rejection of any settlement and related expenses, the Indemnified Person shall assume control of the defense of such Third-Party Claim and the liability of the Indemnifying Person with respect to such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party Claim.
Appears in 1 contract
Indemnification Procedure for Third Party Claims. (a) In the event that subsequent to the Closing any party person or entity entitled to indemnification under this Agreement (the an “Indemnified PersonParty”) desires to make asserts a claim against for indemnification or receives notice of the assertion of any other party (the “Indemnifying Person”) in connection with any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim or demand made of the commencement of any action or proceeding by any Person entity who is not a party to this Agreement against the Indemnified Person or an Affiliate of such a party (including, but not limited to any domestic or foreign court or Governmental Authority, federal, state or local) (a “Third-Third Party Claim”) against such Indemnified Party, against which a party to this Agreement is required to provide indemnification under this Agreement (an “Indemnifying Party”), the Indemnified Party shall give written notice together with a statement of any available information regarding such Indemnified Person must notify claim to the Indemnifying Person in writingParty within thirty (30) days after learning of such claim (or within such shorter time as may be necessary to give the Indemnifying Party a reasonable opportunity to respond to such claim). The Indemnifying Party shall have the right, of upon written notice to the Third-Indemnified Party Claim (a the “Third-Party Claim Defense Notice”) as promptly as reasonably possible after receipt, but in no event later than fifteen within thirty (1530) calendar days after receipt, by such receipt from the Indemnified Person Party of notice of such claim, [which notice by the Third-Indemnifying Party Claimshall specify the counsel it will appoint to defend such claim (“Defense Counsel”)], to conduct at its expense the defense against such claim in its own name, or if necessary in the name of the Indemnified Party; provided, however, that failure to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Person shall have been actually and materially prejudiced as a result of such failure. Upon receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the settlement Defense Counsel and related expenses; provided, however, that upon rejection of any settlement and related expenses, in the Indemnified Person shall assume control of the defense of such Third-Party Claim and the liability of event the Indemnifying Person with respect to such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with Party cannot agree upon such counsel within ten (10) days after the Defense Notice is provided, then the Indemnifying Person in all respects in Party shall propose an alternate Defense Counsel, which shall be subject again to the Indemnified Party’s approval.
A. In the event that the Indemnifying Party shall fail to give such notice, it shall be deemed to have elected not to conduct the defense of the Third-subject claim, and in such event the Indemnified Party shall have the right to conduct such defense in good faith and to compromise and settle the claim without prior consent of the Indemnifying Party and the Indemnifying Party will be liable for all costs, expenses, settlement amounts or other Losses paid or incurred in connection therewith.
B. In the event that the Indemnifying Party does elect to conduct the defense of the subject claim, the Indemnified Party will cooperate with and make available to the Indemnifying Party such assistance and materials as may be reasonably requested by it, all at the expense of the Indemnifying Party, and the Indemnified Party shall have the right at its expense to participate in the defense assisted by counsel of its own choosing, provided that the Indemnified Party shall have the right to compromise and settle the claim only with the prior written consent of the Indemnifying Party, which consent shall not be reasonably withheld or delayed. Without the prior written consent of the Indemnified Party, the Indemnifying Party will not enter into any settlement of any Third Party Claim or cease to defend against such claim, if pursuant to or as a result of such settlement or cessation, (i) injunctive or other equitable relief would be imposed against the Indemnified Party or its Affiliates, or (ii) such settlement or cessation would lead to liability or create any financial or other obligation on the part of the Indemnified Party or its Affiliates for which the Indemnified Party is not entitled to indemnification hereunder. The Indemnifying Party shall not be entitled to control, and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent that claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party or its Affiliates (and the cost of such defense shall constitute a Loss for which the Indemnified Party is entitled to indemnification hereunder). If a firm decision is made to settle a Third Party Claim, including refraining from taking any position adverse to which offer the Indemnifying Person.
(c) If Party is permitted to settle under this Section 9.4B, and the Indemnifying Person fails Party desires to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not accept and agree to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Personsuch offer, the Indemnifying Person shall no longer be entitled Party will give written notice to assume the Indemnified Party to that effect. If the Indemnified Party fails to consent to such firm offer within thirty (but shall 30) calendar days after its receipt of such notice, the Indemnified Party may continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to contest or defend such Third-Third Party Claim and, in such event, the maximum liability of the Indemnifying Person shall indemnify Party as to such Third Party Claim will not exceed the Indemnified Person for all reasonable fees amount of such settlement offer, plus costs and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses paid or incurred by the Indemnified Person in connection with such Claim; (b) assumes Party through the defense end of such Third-Party Claim; thirty (30) day period.
C. Any judgment entered or settlement agreed upon in the manner provided herein shall be binding upon the Indemnifying Party, and (c) takes such other actions as shall conclusively be deemed to be an obligation with respect to which the Indemnified Person may reasonably request Party is entitled to prompt indemnification hereunder.
D. A failure by an Indemnified Party to give timely, complete or accurate notice as assurance provided in Section 9.4 will not affect the rights or obligations of any party hereunder except and only to the extent that, as a result of such failure, any party entitled to receive such notice was deprived of its right to recover any payment under its applicable insurance coverage or was otherwise directly and materially damaged as a result of such failure to give timely notice.
E. The Indemnifying Party shall be subrogated to the Indemnified Party’s rights of recovery to the extent of any Loss satisfied by the Indemnifying Party. The Indemnified Party shall execute and deliver such instruments and papers as are necessary to assign such rights and assist in the exercise thereof, including access to books and records of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party ClaimCompany.
Appears in 1 contract
Indemnification Procedure for Third Party Claims. In the event that, subsequent to the Closing, any person or entity entitled to indemnification under this Agreement (an “Indemnified Party”) receives notice of the assertion of any claim or of the commencement of any action or proceeding by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including, but not limited to any Governmental Authority) (a “Third Party Claim”) against such Indemnified Party, against which a party to this Agreement is required to provide indemnification under this Agreement (an “Indemnifying Party”), the Indemnified Party shall give written notice (a “Third Party Claim Notice”) regarding such claim to the Indemnifying Party within 20 Business Days after learning of such claim, unless the notice relates to commencement of an action or proceeding, in which case such notice shall be given as soon as practicable, and at least 15 Business Days prior to any response required by applicable Law or tribunal rule. The Indemnifying Party shall have the right, upon written notice to the Indemnified Party (the “Defense Notice”) within 15 Business Days after receipt from the Indemnified Party of a Third Party Claim Notice, which notice by the Indemnifying Party shall specify the counsel it will appoint to defend such claim (“Defense Counsel”), to conduct at its expense the defense against such claim in its own name, or if necessary in the name of the Indemnified Party; provided, however, that the Indemnified Party shall have the right to approve the Defense Counsel, which approval shall not be unreasonably withheld, conditioned or delayed.
(a) In the event that any party the Indemnifying Party shall fail to give the Defense Notice within said 15-Business Day period, it shall be deemed to have elected not to conduct the defense of the subject claim, and in such event the Indemnified Party shall have the right to conduct the defense in good faith and to compromise and settle the claim in good faith with the consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed) and the “Indemnified Person”) desires to make a claim against any Indemnifying Party will be liable for all reasonable costs, expenses, settlement amounts or other party (the “Indemnifying Person”) Losses paid or incurred in connection therewith but only upon the terms and conditions of this Article IX; provided, however, that the Indemnified Party shall keep the Indemnifying Party informed of all material developments and events relating to such claim or proceeding.
(b) In the event that the Indemnifying Party does deliver a Defense Notice and thereby elects to conduct the defense of the subject claim, the Indemnifying Party shall be entitled to have the exclusive control over said defense settlement of the subject claim and the Indemnified Party will cooperate with and make available to the Indemnifying Party such assistance and materials as it may reasonably request, all at the expense of the Indemnifying Party, and the Indemnified Party shall have the right at its expense to participate in the defense assisted by counsel of its own choosing; provided, however, that any fees or costs incurred by the Indemnified Party while engaging in such participation shall not be included within the calculation of its Losses for purposes of its entitlement to indemnification under this Section 9.3. In such an event, the Indemnifying Party will not settle the subject claim without the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld, conditioned or delayed).
(c) Without the prior written consent of the Indemnified Party which may be withheld for any reason or no reason, the Indemnifying Party will not enter into any settlement of any Third Party Claim or cease to defend against such claim after assuming the defense of such claim, if pursuant to or as a result of such settlement or cessation, (i) injunctive relief or specific performance would be imposed against the Indemnified Party, (ii) such settlement or cessation would lead to liability or create any financial or other obligation on the part of the Indemnified Party for which the Indemnified Person Party is not entitled to indemnification hereunder, or (iii) such settlement or cessation will not result in a full release of the Indemnified Party with respect to such claim.
(d) Notwithstanding Section 9.2(b), the Indemnifying Party shall not be entitled to control, but may seek indemnification hereunder in respect participate in, and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim (i) that seeks a claim temporary restraining order, a preliminary or demand made by any Person not a party to this Agreement permanent injunction or specific performance against the Indemnified Person Party, (ii) that involves criminal allegations against the Indemnified Party, (iii) that if unsuccessful, would set a “Third-precedent that would materially interfere with, or have a Material Adverse Effect on, the business or financial condition of the Indemnified Party, or (iv) that imposes liability on the part of the Indemnified Party Claim”)for which the Indemnified Party is not entitled to indemnification hereunder. In such an event, such Indemnified Person must notify the Indemnifying Person in writing, Party will still have all of its obligations hereunder provided that the Indemnified Party will not settle the subject claim without the prior written consent of the Third-Indemnifying Party, which consent will not be unreasonably withheld, conditioned or delayed.
(e) Any final judgment entered or settlement agreed upon in the manner provided herein shall conclusively be deemed to be an obligation with respect to which the Indemnified Party Claim is entitled to prompt indemnification hereunder.
(a “Third-f) A failure by either Party Claim Notice”) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice of the Third-Party Claim; provided, that failure to give a Third-Party Claim Notice on a timely basis shall timely, complete or accurate notice as provided in this Section 9.3 will not affect the indemnification provided rights or obligations of any Party hereunder except and only to the extent the Indemnifying Person shall have been actually that, as a result of such failure, any Party entitled to receive such notice was deprived of its right to recover any payment under its applicable insurance coverage or was otherwise directly and materially prejudiced as a result of such failure. Upon receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the settlement and related expenses; provided, however, that upon rejection of any settlement and related expenses, the Indemnified Person shall assume control of the defense of such Third-Party Claim and the liability of the Indemnifying Person with respect to such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails failure to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such timely notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party Claim.
Appears in 1 contract
Sources: Merger Agreement (Ebix Inc)
Indemnification Procedure for Third Party Claims. (a) In the event that any party (the “Indemnified Person”) desires claim or demand, or other circumstance or state of facts which could give rise to make a any claim against any other party (the “Indemnifying Person”) in connection with any Losses or demand, for which the Indemnified Person an Indemnitor may seek indemnification be liable to an Indemnitee hereunder in respect of is asserted or sought to be collected by a claim or demand made by any Person not a third party to this Agreement against the Indemnified Person (a “Third-Third Party Claim”), such Indemnified Person must the Indemnitee shall as soon as practicable notify the Indemnifying Person Indemnitor in writing, writing of the Third-such Third Party Claim (a “Third-Party Claim NoticeNotice of Claim”) as promptly as reasonably possible after receipt). Failure or delay in notifying the Indemnitor will not relieve the Indemnitor of any Liability it may have to the Indemnitee, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice of the Third-Party Claim; provided, that failure to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except and only to the extent that such failure or delay causes actual harm to the Indemnifying Person shall have been actually and materially prejudiced as a result of such failure. Upon receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the settlement and related expenses; provided, however, that upon rejection of any settlement and related expenses, the Indemnified Person shall assume control of the defense of such Third-Party Claim and the liability of the Indemnifying Person Indemnitor with respect to such Third-Third Party Claim. The Notice of Claim shall be limited to specify in reasonable detail the amount or the monetary equivalent estimated amount of such Losses to the extent then ascertainable (which estimate shall not be conclusive of the rejected settlement final amount of such Third Party Claim), the basis for any anticipated liability and related expensesthe nature of the misrepresentation, breach of warranty, breach of covenant or agreement set forth herein (including the applicable Sections of this Agreement with respect thereto), or other claim to which such Losses are related. The Indemnitee shall enclose with the Notice of Claim a copy of all material papers served on the Indemnitee with respect to such Third Party Claim, if any.
(b) The Indemnified Person Indemnitor will be entitled to, by written notice to the Indemnitee delivered within ten (10) Business Days of the receipt of a Notice of Claim, defend or prosecute such Third Party Claim and any Action resulting therefrom (a “Third Party Defense”) with counsel of its choice (subject to approval by the Indemnitee which approval will not be unreasonably withheld, delayed or conditioned), at the cost and expense of the Indemnitor (or, if it is finally determined that the Indemnitee incurred a Loss with respect to the matter in question for which the Indemnitee is not entitled to indemnification pursuant to Section 9.02 or 9.03, as applicable, at the expense of the Indemnitee) upon delivery of notice to such effect to the Indemnitor; provided that the Indemnitor shall retain keep the Indemnitee reasonably informed on a regular and current basis of the progress of such defense and prosecution and provide the Indemnitee with copies of all relevant documents and such other information as the Indemnitee may reasonably request in relation to such defense and prosecution; and provided, further, that the Indemnitee shall have the right to employ participate in the Third Party Defense at its own sole cost and expense, but the Indemnitor shall control the investigation, defense and settlement thereof (provided, that the counsel retained by the Indemnitee to participate in such defense shall not be the counsel of record and to discuss matters shall not communicate with the Indemnifying Person related to or Persons asserting the defense of any Third-Third Party Claim, or any Representatives thereof, without the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions prior written consent of the Indemnifying Person Indemnitor). The Indemnitor shall not be final entitled to assume the control of (and, if Seller Representative has assumed control, shall transfer to the Indemnitee the control of) a Third Party Defense if such Third Party Defense (i) relates to any criminal Action, (ii) seeks an injunction or equitable relief as a remedy against the Indemnitor, (iii) involves Losses reasonably estimated to exceed the maximum aggregate amount of Losses for which the Indemnitor could be responsible to indemnify Indemnitee with respect to such Third Party Claim after applying any limitations set forth in Article IX and the Indemnified Person shall cooperate with the Indemnifying Person in all respects accounting for any other claims that have been made or satisfied; (iv) involves a conflict of interest, which exists or would reasonably be expected to arise in the defense of event the Third-Indemnitor elects to control or defend any Third Party Claim, (v) involves a dispute with a material customer or vendor of any Group Company or its Affiliates, or (vi) at the time of assumption of such defense or prosecution or thereafter, the Indemnitor fails to conduct the investigation, defense or prosecution reasonably diligently. If the Indemnitor chooses to assume control of any Third Party Defense, the Indemnitee shall (at the Indemnitor’s cost) reasonably cooperate in the investigation, defense and settlement of such Third Party Defense, including refraining from taking any position adverse by using commercially reasonable efforts to (x) procure witnesses under the Indemnitee’s control and related witness statements, (y) promptly furnish documentary evidence to the Indemnifying Personextent in its or its Representatives’ possession, and (z) provide access to any other relevant documents or party, including any Representatives, in each case of clauses (x) to (z), (A) to the extent reasonably related to such Third Party Defense and (B) the Indemnitor and its Representatives (as applicable) shall agree to keep all such information confidential and to use it only for the purpose of defending or prosecuting the Third Party Claim. The Indemnitor shall not, without the prior written consent of the Indemnitee (such consent not to be unreasonably withheld, conditioned or delayed), settle or compromise, or consent to the entry of judgment in respect of, any Third Party Defense that the Indemnitor has assumed the control of, in each case, unless such settlement, compromise or judgment does not involve any finding or admission of wrongdoing by the Indemnitee and the Indemnitor obtains, as a condition of any settlement or other resolution, a complete and unconditional release of the Indemnitee from any liability in respect of such Third Party Claim.
(c) If the Indemnifying Person fails Indemnitor does not timely elect to give notice control a Third Party Defense or is not permitted to do so under Section 9.05(b), the Indemnitee shall control the defense or prosecution of such Third Party Defense and any Action resulting therefrom with counsel of its choice (subject to approval by the Indemnitor which approval will not be unreasonably withheld, delayed or conditioned, it being understood that ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP shall be deemed an approved counsel), at the cost and expense of the assumption of Indemnitor subject to the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five limitations set forth in Article IX (45) days after receipt of the Third-Party Claim Notice from the Indemnified Personor, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided if it is finally determined that the Indemnitee incurred a Third-Party Claim Loss with respect to the matter in question for which the Indemnifying Person Indemnitee is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be not entitled to indemnification pursuant to Section 9.02 or 9.03, as applicable, at the cost and expense of the Indemnitee for the portion of the costs and expenses equitably allocated to such matter) upon delivery of notice to such effect to the Indemnitor; provided, however, that (i) the Indemnitor shall have the right to participate in the Third Party Defense at its own expense sole cost and with its own counsel in expense, but the Indemnitee shall control the investigation, defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any and settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claimthereof; and (cii) takes such other actions as the Indemnified Person may reasonably request as assurance of Indemnitor will not be obligated to indemnify the Indemnifying PersonIndemnitee hereunder for any settlement entered into or any judgment that was consented to without the Indemnitor’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party Claimprior written consent (which consent shall not be unreasonably withheld, conditioned or delayed).
Appears in 1 contract
Sources: Transaction Agreement
Indemnification Procedure for Third Party Claims. (a) In the event that subsequent to the Closing any party Person entitled to indemnification under this Agreement (an "INDEMNIFIED PARTY") receives notice of the “Indemnified Person”) desires to make a claim against assertion of any other party (claim, issuance of any order or the “Indemnifying Person”) in connection with commencement of any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim action or demand made proceeding by any Person who is not a party to this Agreement or an Affiliate of a party, including, without limitation, any domestic or foreign court or Governmental Authority (a "THIRD PARTY CLAIM"), against such Indemnified Party, against which a party to this Agreement is required to provide indemnification under this Agreement (an "INDEMNIFYING PARTY"), the Indemnified Person (Party shall give written notice thereof together with a “Third-Party Claim”), statement of any available information regarding such Indemnified Person must notify claim to the Indemnifying Person in writing, of the Third-Party Claim within thirty (a “Third-Party Claim Notice”30) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receiptlearning of such claim (or within such shorter time as may be necessary, by in the Indemnified Party's reasonable judgment, to give the Indemnifying Party a reasonable opportunity to respond to and defend such claim). The Indemnifying Party shall have the right, upon written notice to the Indemnified Person Party (the "DEFENSE NOTICE") within ten days (10) after receipt from the Indemnified Party of notice of such claim, to conduct at its expense the Third-Party Claimdefense against such claim in its own name, or if necessary in the name of the Indemnified Party; provided, however, that failure to give a Third-the -------- ------- Indemnified Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Person shall have been actually and materially prejudiced as a result of such failure. Upon receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the settlement and related expenses; provided, however, that upon rejection of any settlement and related expenses, the Indemnified Person shall assume control of the defense of such Third-Party Claim and the liability of the Indemnifying Person with respect to such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed selected by the Indemnifying Person pursuant to Section 10.3(a) of this AgreementParty, but which approval shall not be unreasonably withheld, and in the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of event the Indemnifying Person shall be final Party and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
cannot agree upon such counsel within ten (c) If the Indemnifying Person fails to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (1510) days after the giving of such noticeDefense Notice is provided, then the Indemnifying Party shall propose an alternate defense counsel, who shall be subject again to the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party ClaimParty's approval.
Appears in 1 contract
Indemnification Procedure for Third Party Claims. In the event that, subsequent to the Closing, any person or entity that may be entitled to indemnification under this Agreement (an “Indemnified Party”) receives notice of the assertion of any claim or of the commencement of any action or proceeding by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including, but not limited to any Governmental Authority) (a “Third Party Claim”) against such Indemnified Party, for which a party to this Agreement may be entitled to indemnification under this Agreement, the Indemnified Party shall give prompt written notice regarding such claim to the party hereto required to provide such indemnification (or if such indemnification is to be provided from the Escrow Account, then to Seller) (such notified party, the “Responsible Party”) (but in no event later than ten (10) Business Days after learning of such claim). The Responsible Party shall have the right upon written notice to the Indemnified Party (the “Defense Notice”) within fifteen (15) days after receipt from the Indemnified Party of notice of such claim, which notice by the Responsible Party shall specify the counsel it will appoint to defend such claim (“Defense Counsel”), to conduct at its expense the defense against such claim in its own name, or if necessary in the name of the Indemnified Party; provided, however, that the Indemnified Party shall have the right to approve the Defense Counsel, which approval shall not be unreasonably withheld or delayed.
(a) In the event that the Responsible Party shall fail to give the Defense Notice within said 15-day period, (or if the Responsible Party is not entitled to assume the defense of the subject claim), it shall be deemed to have elected not to conduct the defense of the subject claim, and in such event the Indemnified Party shall conduct the defense in good faith and may compromise and settle the claim in good faith with the prior consent of the Responsible Party, such consent not to be unreasonably withheld.
(b) In the event that the Responsible Party does deliver a Defense Notice and thereby elects to conduct the defense of the subject claim, the Responsible Party shall be entitled to have control over said defense or settlement of the subject claim, the Indemnified Party will cooperate with and make available to the Responsible Party such assistance and materials as it may reasonably request, all at the expense of the Responsible Party, and the Indemnified Party shall have the right, at its own expense, to participate in the defense assisted by counsel of its own choosing. In such an event, the Responsible Party will not settle the subject claim without the prior written consent of the Indemnified Party, such consent, except as set forth in Section 8.3(c), not to be unreasonably withheld.
(c) Without the prior written consent of the Indemnified Party, the Responsible Party will not enter into any party settlement of or consent to the entry of any judgment with respect to any Third Party Claim or cease to defend against such claim, if (i) pursuant to or as a result of such settlement, judgment or cessation, injunctive relief or specific performance would be imposed against the “Indemnified Person”Party, (ii) desires such settlement, judgment or cessation would lead to make a claim against liability or create any financial or other party (obligation on the “Indemnifying Person”) in connection with any Losses part of the Indemnified Party for which the Indemnified Person may seek Party is not entitled to indemnification hereunder hereunder, (iii) such settlement, judgment or cessation does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of a to such claim or demand made by (iv) such settlement, judgment or cessation would result in the finding or admission of any Person violation of Law.
(d) Notwithstanding Section 8.3(b), the Responsible Party shall not be entitled to control, but may participate in, and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim (i) that seeks a party to this Agreement temporary restraining order, a preliminary or permanent injunction or specific performance against the Indemnified Person Party, (ii) that involves criminal allegations against the Indemnified Party, (iii) with respect to which the Indemnified Party has been advised by counsel that a “Third-reasonable likelihood exists of a conflict of interest between the Responsible Party Claim”and the Indemnified Party with respect to such claim, or (iv) with respect to which the Responsible Party has failed to prosecute or defend such claim in a reasonable manner.
(e) Any final judgment entered or settlement agreed upon in the manner provided herein shall be binding upon the Responsible Party, and shall conclusively be deemed to be an obligation with respect to which the Indemnified Party is entitled to prompt indemnification hereunder (subject to all limitations contained herein), such .
(f) A failure by an Indemnified Person must notify the Indemnifying Person in writing, of the Third-Party Claim (a “Third-Party Claim Notice”) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice of the Third-Party Claim; provided, that failure to give a Third-Party Claim Notice on a timely basis shall timely, complete or accurate notice as provided in this Section 8.3 will not affect the indemnification provided rights or obligations of any party hereunder except and only to the extent the Indemnifying Person shall have been actually that, as a result of such failure, any party entitled to receive such notice was deprived of its right to recover any payment under its applicable insurance coverage or was otherwise directly and materially prejudiced as a result of such failure. Upon receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the settlement and related expenses; provided, however, that upon rejection of any settlement and related expenses, the Indemnified Person shall assume control of the defense of such Third-Party Claim and the liability of the Indemnifying Person with respect to such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails failure to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such timely notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party Claim.
Appears in 1 contract
Indemnification Procedure for Third Party Claims. (a) In Other than a Tax Claim or a Tax Contest, which procedure is set forth and which shall be governed exclusively by SECTION 10.1(D), in the event that subsequent to the Closing, any party Person that is or may be entitled to indemnification under this Agreement (an "INDEMNIFIED PARTY") receives notice of the “Indemnified Person”) desires to make a claim against assertion of any other party (claim, issuance of any order or the “Indemnifying Person”) in connection with commencement of any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim action or demand made proceeding by any Person who is not a party to this Agreement or an Affiliate of a party, including, without limitation, any Governmental Authority (a "THIRD PARTY CLAIM"), against such Indemnified Party, against which a party to this Agreement is or may be required to provide indemnification under this Agreement (an "INDEMNIFYING PARTY"), the Indemnified Person Party shall give written notice thereof together with a statement of any available information regarding such claim to the Indemnifying Party within thirty (30) days after learning of such claim (or within such shorter time as may be necessary to give the Indemnifying Party a “Third-Party Claim”reasonable opportunity to respond to and defend such claim), such Indemnified Person must notify the Indemnifying Person in writing, of the Third-Party Claim (a “Third-Party Claim Notice”) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice of the Third-Party Claim; provided, provided that failure to give a Third-Party Claim Notice on a timely basis notice within such period shall not affect the indemnification provided hereunder except Indemnified Parties' rights, or the Indemnifying Parties' obligations hereunder, expect to the extent the Indemnifying Person Parties are actually prejudiced by such delay. For purposes of this ARTICLE XI, notice to the Representatives shall be deemed notice to all of the Company Stockholders. The Indemnifying Party shall have been actually and materially prejudiced as a result of such failure. Upon the right upon written notice to the Indemnified Party (the "DEFENSE NOTICE") within thirty (30) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s electionParty of notice of such claim, to assume conduct at its expense the defense against such claim in its own name, or participate if necessary in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense name of the Third-Party ClaimIndemnified Party; PROVIDED, the Indemnifying Person shall give HOWEVER, that the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person Party shall have the right to approve or reject the settlement and related expenses; provided, however, that upon rejection of any settlement and related expenses, the Indemnified Person shall assume control of the defense of such Third-Party Claim and the liability of the Indemnifying Person with respect to such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed selected by the Indemnifying Person pursuant to Section 10.3(a) of this AgreementParty, but which approval shall not be unreasonably withheld, conditioned or delayed, and in the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of event the Indemnifying Person shall be final Party and the Indemnified Person shall cooperate with Party cannot agree upon such counsel within ten days after the Defense Notice is provided, then the Indemnifying Person in all respects in Party shall propose an alternate defense counsel, who shall be subject again to the Indemnified Party's approval, which such approval shall not be unreasonably withheld, conditioned or delayed. In the event that the Indemnifying Party does elect to conduct the defense of the Third-subject claim, the Indemnified Party will cooperate with and make available to the Indemnifying Party such assistance and materials as may be reasonably requested by it, and the Indemnified Party shall have the right at its expense to participate in the defense assisted by counsel of its own choosing, provided that the Indemnified Party shall have the right to compromise and settle the claim only with the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. Without the prior written consent of the Indemnified Party, the Indemnifying Party will not enter into any settlement of any Third Party Claim or cease to defend against such claim, if pursuant to or as a result of such settlement or cessation, (i) injunctive or other equitable relief would be imposed against the Indemnified Party, or (ii) such settlement or cessation would lead to liability or create any financial or other obligation on the part of the Indemnified Party for which the Indemnified Party is not indemnified hereunder. The Indemnifying Party shall not be entitled to control, and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent that claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party, or in a proceeding to which the Indemnifying Party is also a party and the Indemnified Party determines in good faith that joint representation would be inappropriate (and in each case the cost of such defense shall constitute an amount for which the Indemnified Party is entitled to indemnification hereunder). If an offer is made to settle a Third Party Claim, including refraining from taking any position adverse to which offer the Indemnifying Person.
(c) If Party is permitted to settle under this SECTION 11.5 only upon the prior written consent of the Indemnified Party, and the Indemnifying Person fails Party desires to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not accept and agree to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Personsuch offer, the Indemnifying Person shall no longer be entitled Party will give prompt written notice to assume the Indemnified Party to that effect. If the Indemnified Party fails to consent to such firm offer within twenty (but shall 20) calendar days after its receipt of such notice, the Indemnified Party may continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to contest or defend such Third-Third Party Claim and, in such event, the maximum liability of the Indemnifying Person shall indemnify Party as to such Third Party Claim will not exceed the Indemnified Person for all reasonable fees amount of such settlement offer, plus costs and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses paid or incurred by the Indemnified Person in connection with such Claim; (b) assumes Party through the defense end of such Thirdtwenty (20) day period. Other than as specifically provided in this SECTION 11.5, any final, non-Party Claim; appealable or non-appealed judgment entered, order issued or settlement agreed upon in the manner provided in this SECTION 11.5 shall be binding upon the Indemnifying Party, and (c) takes such other actions as shall conclusively be deemed to be an obligation with respect to which the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability Party is entitled to fulfill its obligations under this Article 10 in connection with such Third-Party Claimprompt indemnification hereunder.
Appears in 1 contract
Sources: Merger Agreement (Pactiv Corp)
Indemnification Procedure for Third Party Claims. (a) In the event that subsequent to the Closing any party Person entitled to indemnification under this Agreement (the an “Indemnified PersonParty”) desires to make a claim against receives notice of the assertion of any other party (the “Indemnifying Person”) in connection with any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim or demand made of the commencement of any action or proceeding by any Person who is not a party to this Agreement against the Indemnified Person or an Affiliate of a party to this Agreement, including without limitation, a Patent Infringement Claim, (a “Third-Third Party Claim”), ) against such Indemnified Person must notify the Party, against which a party to this Agreement is required to provide indemnification under this Agreement (an “Indemnifying Person in writing, of the Third-Party Claim (a “Third-Party Claim NoticeParty”) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice of the Third-Party Claim; provided, that failure to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Person shall have been actually and materially prejudiced as a result of such failure. Upon receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the settlement and related expenses; provided, however, that upon rejection of any settlement and related expenses), the Indemnified Person Party shall assume control give written notice together with a statement of the defense any available information regarding such claim (and attaching a copy of such Third-Party Claim and the liability of the Indemnifying Person all papers served with respect to such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expenses.
(bclaim) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving learning of such notice, claim (or within such shorter time as may be necessary to give the Indemnifying Party a reasonable opportunity to respond to such claim) (the “Claim Notice”). The Indemnifying Party will have the right to defend the Indemnified Person shall be permitted to effect such settlement unless Party against the Third Party Claim with counsel of the Indemnifying Person Party’s choice, satisfactory to Indemnified Party, so long as (aA) reimburses the Indemnifying Party notifies the Indemnified Person Party in accordance with writing within thirty (30) calendar days after receipt of a Claim Notice (the terms of this Article 10 for all reasonable fees and expenses incurred by “Control Notice”) that the Indemnified Person in connection with such Claim; (b) assumes Indemnifying Party will undertake to assume the defense of such Third-Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim; , (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party has and will at all times continue to have the financial resources to defend against the Third Party Claim and fulfill its indemnification obligations hereunder with respect thereto, (C) the Indemnifying Party conducts the defense of the Third Party Claim actively and diligently at its own cost and expense and (cD) takes the Third Party Claim has not been initiated by any Governmental Authority. So long as such other actions as conditions are and remain satisfied, then the Indemnifying Party may conduct the defense of the Third Party Claim and the Indemnified Party may participate through counsel chosen by such Indemnified Party and paid at its own expense (which expense shall not constitute part of any Loss that is the subject of indemnity under this Section 6.4 unless the Indemnified Party has reasonably concluded that counsel chosen by the Indemnifying Party has actual or potential conflicts of interest and has so notified the Indemnifying Party in writing). If the Indemnifying Party does not deliver a Control Notice within the thirty (30) day period provided above or any of the conditions set forth in clauses (A) through (D) above are or become unsatisfied, the Indemnified Party shall have the right to undertake the settlement or defense of the claim, but shall not thereby waive any right to indemnity from the Indemnifying Party therefor. The Person handling such defense or settlement shall pursue such defense or settlement with the customary care that a reasonably prudent person would exercise under the circumstances. If the Indemnifying Party decides not to undertake the conduct and control of the settlement or defense of a claim, the Indemnified Party may reasonably request as assurance undertake control of the settlement or defense of the Third Party Claim to the entire exclusion of the Indemnifying Person’s ability Party. The Indemnifying Party will not pay or enter into any settlement of any Third Party Claim or consent to fulfill its obligations under this Article 10 the entry of any judgment with respect to any Third Party Claim without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed. Furthermore, the Indemnifying Party will not consent to the entry of any judgment with respect to the matter, or enter into any settlement which either imposes an injunction or other equitable relief upon the Indemnified Party or does not include a provision whereby the plaintiff or claimant in connection the matter releases the Indemnified Party from all liability with such Third-respect thereto. Any final judgment entered or settlement agreed upon in the manner provided herein shall be binding upon the Indemnifying Party, and shall conclusively be deemed to be an obligation with respect to which the Indemnified Party Claimis entitled to prompt indemnification hereunder.
Appears in 1 contract
Sources: Asset Purchase Agreement (Cytori Therapeutics, Inc.)
Indemnification Procedure for Third Party Claims. In the event that subsequent to the Closing any Person or entity entitled to indemnification under this Agreement (an "Indemnified Party") asserts a claim for indemnification or receives notice of the assertion of any claim or of the commencement of any action or proceeding by any entity who is not a party to this Agreement or an Affiliate of a party to this Agreement (including, but not limited to any domestic or foreign court or Governmental Body) (a "Third Party Claim") against such Indemnified Party, against which a party to this Agreement is required to provide indemnification under this Agreement (an "Indemnifying Party"), the Indemnified Party shall give written notice together with a statement of any available information (other than privileged information) regarding such claim to the Indemnifying Party within thirty (30) business days after learning of such claim (or within such shorter time as may be necessary to give the Indemnifying Party a reasonable opportunity to respond to such claim). The Indemnifying Party shall have the right, upon written notice to the Indemnified Party (the "Defense Notice") within fifteen days (15) after receipt from the Indemnified Party of notice of such claim, which notice by the Indemnifying Party shall specify the counsel it will appoint to defend such claim ("Defense Counsel"), to conduct at its expense the defense against such claim in its own name, or if necessary in the name of the Indemnified Party; provided, however, that the Indemnified Party shall have the right to approve the Defense Counsel, which approval shall not be unreasonably withheld, and in the event the Indemnifying Party and the Indemnified Party cannot agree upon such counsel within ten (10) days after the Defense Notice is provided, then the Indemnifying Party shall propose an alternate Defense Counsel, which shall be subject again to the Indemnified Party's approval which approval shall not be unreasonably withheld. If the parties still fail to agree on the Defense Counsel, then, at such time, they shall mutually agree in good faith on a procedure to determine the Defense Counsel.
(a) In the event that any party (the “Indemnifying Party shall fail to give the Defense Notice within said 15 day period, it shall be deemed to have elected not to conduct the defense of the subject claim, and in such event the Indemnified Person”) desires Party shall have the right to make a conduct the defense in good faith and to compromise and settle the claim against any in good faith without prior consent of the Indemnifying Party and the Indemnifying Party will be liable for all reasonable costs, expenses, settlement amounts or other party (the “Indemnifying Person”) Losses paid or incurred in connection therewith.
(b) In the event that the Indemnifying Party does deliver a Defense Notice and thereby elects to conduct the defense of the subject claim, the Indemnifying Party shall be entitled to have the exclusive control over said defense settlement of the subject claim and the Indemnified Party will cooperate with and make available to the Indemnifying Party such assistance and materials as it may reasonably request, all at the expense of the Indemnifying Party, and the Indemnified Party shall have the right at its expense to participate in the defense assisted by counsel of its own choosing. In such an event, the Indemnifying Party will not settle the subject claim without the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld.
(c) Without the prior written consent of the Indemnified Party, the Indemnifying Party will not enter into any Losses settlement of any Third Party Claim or cease to defend against such claim, if pursuant to or as a result of such settlement or cessation, (i) injunctive relief or specific performance would be imposed against the Indemnified Party, or (ii) such settlement or cessation would lead to liability or create any financial or other obligation on the part of the Indemnified Party for which the Indemnified Person Party is not entitled to indemnification hereunder.
(d) Notwithstanding paragraph (b) above, the Indemnifying Party shall not be entitled to control, but may seek indemnification hereunder in respect participate in, and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim (i) that seeks a claim temporary restraining order, a preliminary or demand made by any Person not a party to this Agreement permanent injunction or specific performance against the Indemnified Person Party, (ii) to the extent such claim involves criminal allegations against the Indemnified Party, (iii) that if unsuccessful, would set a “Third-precedent that would materially interfere with, or have a material adverse effect on, the business or financial condition of the Indemnified Party, or (iv) to the extent such claim imposes liability on the part of the Indemnified Party Claim”)for which the Indemnified Party is not entitled to indemnification hereunder. In such an event, such Indemnified Person must notify the Indemnifying Person in writing, Party will still have all of its obligations hereunder provided that the Indemnified Party will not settle the subject claim without the prior written consent of the Third-Indemnifying Party, which consent will not be unreasonably withheld.
(e) Any final judgment entered or settlement agreed upon in the manner provided herein shall be binding upon the Indemnifying Party, and shall conclusively be deemed to be an obligation with respect to which the Indemnified Party Claim is entitled to prompt indemnification hereunder.
(a “Third-f) A failure by an Indemnified Party Claim Notice”) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice of the Third-Party Claim; provided, that failure to give a Third-Party Claim Notice on a timely basis shall timely, complete or accurate notice as provided in this SECTION 8.3 will not affect the indemnification provided rights or obligations of any party hereunder except and only to the extent the Indemnifying Person shall have been actually and materially prejudiced that, as a result of such failure. Upon receipt , any party entitled to receive such notice was deprived of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the its right to approve recover any payment under its applicable insurance coverage or reject the settlement was otherwise directly and related expenses; provided, however, that upon rejection of any settlement and related expenses, the Indemnified Person shall assume control of the defense materially damaged as a result of such Third-Party Claim and the liability of the Indemnifying Person with respect to such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails failure to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such timely notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party Claim.
Appears in 1 contract
Sources: Asset Purchase Agreement (Platinum Entertainment Inc)
Indemnification Procedure for Third Party Claims. (a) In the event that Promptly after receipt by an Indemnified Party of notice from any third party (the “Indemnified Person”) desires to make a claim against any other party (the “Indemnifying Person”) in connection with any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim or demand made by any Person not a party in respect of which indemnity may be sought under Section 12.2 or 12.3 which is asserted against or sought to this Agreement against be collected from the Indemnified Person Party, including the commencement of any Proceeding against it (a “Third-"Third Party Claim”"), the Indemnified Party shall, if a claim is to be made against an Indemnifying Party under such Indemnified Person must Section 12.2 or 12.3, as applicable, give notice to the Indemnifying Party of the Third Party Claim, but the failure to notify the Indemnifying Person in writingParty will not relieve the Indemnifying Party of any Liability that it may have to any Indemnified Party, of the Third-Party Claim (a “Third-Party Claim Notice”) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice of the Third-Party Claim; provided, that failure to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent that the Indemnifying Person Party demonstrates that the defense of such Third Party Claim is materially prejudiced by the Indemnifying Party's failure to receive such notice.
(b) If any Third Party Claim referred to in Section 12.4(a) is brought against an Indemnified Party and it gives notice to the Indemnifying Party of such claim, the Indemnifying Party will be entitled to participate in any Proceeding underlying the claim and, to the extent that it wishes (unless the Indemnifying Party is also a party to such Proceeding and the Indemnified Party determines in good faith that joint representation would be inappropriate, in which event such Indemnified Party shall have been actually the right to retain, at the Indemnifying Party's expense, one separate counsel, reasonably satisfactory to the Indemnifying Party, to defend such claim on behalf of such Indemnified Party), assume the defense of such claim with counsel reasonably satisfactory to the Indemnified Party and, after notice from the Indemnifying Party to the Indemnified Party of its election to assume the defense of such Proceeding, except in the circumstances described in the parenthetical above, the Indemnifying Party will not, as long as it diligently conducts such defense, be liable to the Indemnified Party under this Section 12.4 for any fees of other counsel or any other expenses with respect to the defense of such claim, in each case subsequently incurred by the Indemnified Party in connection with the defense of such claim, other than reasonable costs of investigation. If the Indemnifying Party assumes the defense of the Third Party Claim: (i) no compromise or settlement of such claim may be effected by the Indemnifying Party without the Indemnified Party's written consent unless (A) there is no finding or admission of any violation of Law or Order or any violation of the rights of any Person, (B) such settlement or compromise releases the Indemnified Party in connection with such Third Party Claim, (C) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party and materially prejudiced (D) such settlement or compromise does not require any payment or other action by, or limitation on, the Indemnified Party; (ii) the Indemnified Party will have no Liability with respect to any compromise or settlement of such claim effected without its written consent; and (iii) the Indemnified Party shall have the right to participate in such defense and to employ counsel, in each case, at its own expense. Subject to Section 12.4(c), if notice is given to an Indemnifying Party of any Third Party Claim 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 Proceeding or any compromise or settlement effected by the Indemnified Party.
(c) Notwithstanding the foregoing, if an Indemnified Party determines in good faith that there is a reasonable probability that a Proceeding may adversely affect it or its Affiliates other than as a result of such failure. Upon receipt of the Third-Party Claim Notice from monetary damages for which it would be entitled to indemnification under this Agreement, the Indemnified PersonParty may, by notice to the Indemnifying Person shall be entitledParty, at assume the exclusive right to defend, compromise, or settle such Proceeding, but the Indemnifying Person’s election, to assume Party will not be bound by any determination of a Proceeding so defended or participate any compromise or settlement effected without its consent (which may not be unreasonably withheld).
(d) The Parties shall cooperate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the settlement and related expenses; provided, however, that upon rejection of any settlement and related expenses, the Indemnified Person shall assume control of the defense of such Third-Party Claim and the liability of the Indemnifying Person with respect to such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals as may be solely responsible for its own costs and expenses reasonably requested in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms provisions of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party Claim12.
Appears in 1 contract
Indemnification Procedure for Third Party Claims. In the event that any Person entitled to indemnification under this Agreement (an "Indemnified Party") asserts a claim for indemnification or receives notice of the assertion of any claim or of the commencement of any action or proceeding by any Person who is not a party to this Agreement or an affiliate of a party to this Agreement (a "Third Party Claim") against such Indemnified Party, against which a party to this Agreement is required to provide indemnification under this Agreement (an "Indemnifying Party"), the Indemnified Party shall give written notice together with a statement of any available information regarding such claim to the Indemnifying Party within five business days after learning of such claim (or within such shorter time as may be necessary to give the Indemnifying Party a reasonable opportunity to respond to such claim). The Indemnifying Party shall have the right, upon written notice to the Indemnified Party (the "Defense Notice") within five business days after receipt from the Indemnified Party of notice of such claim, which notice by the Indemnifying Party shall specify the counsel it will appoint to defend such claim ("Defense Counsel"), to conduct at its expense the defense against such claim in its own name, or if necessary in the name of the Indemnified Party; provided, however, that the Indemnified Party shall have the right to approve the Defense Counsel, which approval shall not be unreasonably withheld or delayed, and in the event the Indemnifying Party and the Indemnified Party cannot agree upon such counsel within 10 days after the Defense Notice is provided, then the Indemnifying Party shall propose an alternate Defense Counsel, which shall be subject again to the Indemnified Party's approval which approval shall not be unreasonably withheld or delayed. If the parties still fail to agree on the Defense Counsel, then, at such time, the Indemnifying Party shall determine the Defense Counsel.
(a) In the event that the Indemnifying Party shall fail to give the Defense Notice within a thirty day period, it shall be deemed to have elected not to conduct the defense of the subject claim, and in such event the Indemnified Party shall have the right to conduct the defense and to compromise and settle the claim without prior consent of the Indemnifying Party.
(b) In the event that the Indemnifying Party does deliver a Defense Notice and thereby elects to conduct the defense of the subject claim, the Indemnifying Party shall be entitled to have the exclusive control over the defense and settlement of the subject claim and the Indemnified Party will cooperate with and make available to the Indemnifying Party such assistance and materials as it may reasonably request, all at the expense of the Indemnifying Party; the Indemnified Party shall have the right at its expense to participate in the defense assisted by counsel of its own choosing and at its sole expense. In such an event, the Indemnifying Party will not settle the subject claim without the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld or delayed.
(c) Without the prior written consent of the Indemnified Party, the Indemnifying Party will not enter into any party settlement of any Third Party Claim or cease to defend against such claim, if pursuant to or as a result of such settlement or cessation, (i) injunctive relief or specific performance would be imposed against the “Indemnified Person”Party, or (ii) desires such settlement or cessation would lead to make a claim against liability or create any financial or other party (obligation on the “Indemnifying Person”) in connection with any Losses part of the Indemnified Party for which the Indemnified Person Party is not entitled to indemnification hereunder.
(d) If an Indemnified Party refuses to consent to a bona fide offer of settlement which provides for a full release of the Indemnified Party and its affiliates, if parties, and solely for a monetary payment which the Indemnifying Party wishes to accept, the Indemnified Party may seek indemnification hereunder in respect continue to pursue such matter, free of any participation by the Indemnifying Party, at the sole expense of the Indemnified Party. In such an event, the obligation of the Indemnifying Party shall be limited to the amount of the offer of settlement which the Indemnified Party refused to accept plus the costs and expenses of the Indemnified Party incurred prior to the date the Indemnifying Party notified the Indemnified Party of the offer of settlement.
(e) Notwithstanding clause (b) above, the Indemnifying Party shall not be entitled to control, but may participate in, and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim (i) that seeks a claim temporary restraining order, a preliminary or demand made by any Person not a party to this Agreement permanent injunction or specific performance against the Indemnified Person Party, (ii) to the extent such claim involves criminal allegations against the Indemnified Party, (iii) that if unsuccessful, would set a “Third-precedent that would materially interfere with, or have a material adverse effect on, the business or financial condition of the Indemnified Party Claim”)or (iv) if such claim would impose liability on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder. In such an event, such Indemnified Person must notify the Indemnifying Person in writing, Party will still have all of its obligations hereunder provided that the Indemnified Party will not settle the subject claim without the prior written consent of the Third-Party Claim Indemnifying Party, which consent will not be unreasonably withheld or delayed.
(a “Third-Party Claim Notice”f) as promptly as reasonably possible after receiptAny final judgment entered or settlement agreed upon in the manner provided herein shall be binding upon all parties and, but if the dispute in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice question would impose liability on the part of the Third-Indemnifying Party Claim; providedunder this Article VIII, that shall conclusively be deemed to be an obligation with respect to which the Indemnified Party is entitled to prompt indemnification hereunder.
(g) A failure by an Indemnified Party to give a Third-Party Claim Notice on a timely basis shall timely, complete or accurate notice as provided in this Section 8.4 will not affect the indemnification provided rights or obligations of any party hereunder except and only to the extent the Indemnifying Person shall have been actually and materially prejudiced that, as a result of such failure. Upon receipt , any party entitled to receive such notice was deprived of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the its right to approve recover any payment under its applicable insurance coverage or reject the settlement was otherwise directly and related expenses; provided, however, that upon rejection of any settlement and related expenses, the Indemnified Person shall assume control of the defense materially damaged as a result of such Third-Party Claim and the liability of the Indemnifying Person with respect to such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails failure to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such timely notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party Claim.
Appears in 1 contract
Sources: Merger Agreement (Paradise Music & Entertainment Inc)
Indemnification Procedure for Third Party Claims. (a) In the event that any party (the “Indemnified Person”) desires to make a claim against any other party (the “Indemnifying Person”) in connection with any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim or demand made for which an Indemnitor may be liable to an Indemnitee hereunder is asserted by any Person not a third party to this Agreement against the Indemnified Person (a “Third-Third Party Claim”), such Indemnified Person must the Indemnitee shall promptly notify the Indemnifying Person Indemnitor in writing, writing of the Third-such Third Party Claim (such notice, a “Third-Party Claim Notice”) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice of the Third-Party Claim; provided, that failure to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Person shall have been actually and materially prejudiced as a result of such failure. Upon receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the settlement and related expenses; provided, however, that upon rejection the failure or delay to so notify the Indemnitor shall not relieve the Indemnitor of any settlement obligation or liability that the Indemnitor may have to the Indemnitee unless, and related expensesthen only to the extent that, the Indemnified Person Indemnitor is materially prejudiced thereby. The Claim Notice shall assume control (i) state that the Indemnitee has paid or properly accrued Losses or anticipates that it may incur liability for Losses for which such Indemnitee is entitled to indemnification pursuant to this Agreement, and (ii) specify in reasonable detail each individual item of Loss included in the amount so stated, the date such item was paid or properly accrued, the basis for any anticipated liability and the nature of the defense breach of representation, warranty, covenant or agreement to which each such Third-Party Claim item is related and the liability computation of the Indemnifying Person amount to which such Indemnitee claims to be entitled hereunder (in each case to the extent determinable). The Indemnitee shall enclose with the Claim Notice a copy of all papers served with respect to such Third-Third Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement Claim, if any, and related expensesany other documents evidencing such Third Party Claim.
(b) The Indemnified Person Indemnitor shall retain have 45 days from the right date on which the Indemnitor received the Claim Notice to employ notify the Indemnitee that the Indemnitor desires to assume the defense or prosecution of such Third Party Claim and any litigation resulting therefrom with counsel of its own counsel choice and to discuss matters with at its sole cost and expense. If the Indemnifying Person related to Indemnitor assumes the defense of such claim in accordance herewith: (i) the Indemnitee may retain separate co-counsel at its sole cost and expense and participate in the defense of such Third Party Claim, but the Indemnitor shall control the investigation, defense and settlement thereof; (ii) the Indemnitee shall not file any Third-papers or consent to the entry of any judgment or enter into any settlement with respect to such Third Party Claim without the prior written consent of the Indemnitor; and (iii) the Indemnitor shall not consent to the entry of any judgment or enter into any settlement with respect to such Third Party Claim to the extent such judgment or settlement provides for equitable relief without the prior written consent of the Indemnitee (not to be unreasonably withheld, conditioned or delayed). The parties shall (subject to the terms hereof) use commercially reasonable efforts to minimize Losses from Third Party Claims, act in good faith in responding to, defending against, settling or otherwise dealing with such claims, and cooperate in any such defense and give each other reasonable access to and copies of information, records and documents relevant thereto. Whether or not the Indemnitor has assumed the defense of such Third Party Claim, the Indemnitor will not be obligated to indemnify the Indemnitee hereunder with respect to any settlement entered into or any judgment consented to without the Indemnitor’s prior written consent (not to be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing, in no event shall the Indemnitor be entitled to assume the defense of which has been assumed by a Third Party Claim, and the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and Indemnitor in such cases shall be solely responsible for its own costs obligated to pay the reasonable fees and expenses of the Indemnitee in connection with the defense and resolution of such participation; providedThird Party Claim, however, that, subject to Section 10.3(aif (i) above, all decisions counsel for Indemnitee reasonably determines that a conflict of interest exists between the positions of the Indemnifying Person shall Indemnitee and Indemnitor, (ii) the Third Party Claim is criminal in nature or seeks a form of injunctive relief or (iii) the Third Party Claim expressly seeks an amount that if fully adjudicated in favor of such third party would be final and reasonably likely to result in monetary damages in excess of the Indemnified Person shall cooperate with Cap. The Indemnitee may take any actions reasonably necessary to defend such Third Party Claim prior to the Indemnifying Person in all respects in time the Indemnitor assumes the defense of the Third-such Third Party Claim, including refraining from taking any position adverse to the Indemnifying PersonClaim hereunder.
(c) If the Indemnifying Person fails to give notice of the assumption of Indemnitor does not assume the defense of any Third-such Third Party Claim within a reasonable time period not to exceed forty-five (45) 45 days after of receipt of the Third-Party Claim Notice from the Indemnified PersonNotice, the Indemnifying Person shall no longer Indemnitee will be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its optionsole cost and expense (or, continue if the Indemnitee incurs a Loss with respect to defend such Third-Party Claim and, the matter in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim question for which the Indemnifying Person Indemnitee is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to indemnification pursuant to Section 8.2 or 8.3, as applicable, at the expense of the Indemnitor); provided, however, that the Indemnitor: (i) shall have the right to participate at its own expense and with its own counsel in the defense of any Third-the Third Party Claim at its sole cost and expense, but the Indemnitee shall control the investigation, defense and settlement thereof; (ii) may at any time thereafter assume defense of which it does not assume. Prior the Third Party Claim (subject to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all hereof), in which event the Indemnitor shall bear the reasonable fees fees, costs and expenses of the Indemnitee’s counsel incurred prior to the assumption by the Indemnified Person in connection with such Claim; (b) assumes the Indemnitor of defense of such Third-the Third Party Claim; and (ciii) takes shall not be obligated to indemnify the Indemnitee hereunder for any settlement entered into or any judgment consented to without the Indemnitor’s prior written consent (not to be unreasonably withheld, conditioned or delayed). If the Indemnitee defends such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Third Party Claim, the Indemnitor shall cooperate with the Indemnitee and give the Indemnitee reasonable access to and copies of information, documents and records relevant thereto.
Appears in 1 contract
Indemnification Procedure for Third Party Claims. (a) In the event that subsequent to the Closing any party person or entity entitled to indemnification under this Agreement (the an “Indemnified PersonParty”) desires to make asserts a claim against for indemnification or receives notice of the assertion of any other party (the “Indemnifying Person”) in connection with any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim or demand made of the commencement of any action or proceeding by any Person entity that is not a party to this Agreement against the Indemnified Person or an Affiliate of a party to this Agreement (including, but not limited to any domestic or foreign court or governmental authority, federal, state or local) (a “Third-Third Party Claim”) against such Indemnified Party, against which a party to this Agreement is required to provide indemnification under this Agreement (an “Indemnifying Party”), the Indemnified Party shall give written notice together with a statement of any available information regarding such Indemnified Person must notify claim to the Indemnifying Person in writingParty within 60 days after learning of such claim (or within such shorter time as may be necessary to give the Indemnifying Party a reasonable opportunity to respond to such claim). The Indemnifying Party shall have the right, of upon written notice to the Third-Indemnified Party Claim (a the “Third-Party Claim Defense Notice”) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar within 30 days after receipt, by such receipt from the Indemnified Person Party of notice of such claim, which notice by the Third-Indemnifying Party Claimshall specify the counsel it will appoint to defend such claim (“Defense Counsel”), to conduct at its expense the defense against such claim in its own name, or if necessary in the name of the Indemnified Party; provided, however, that failure to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Person shall have been actually and materially prejudiced as a result of such failure. Upon receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the settlement Defense Counsel, which approval shall not be unreasonably withheld, and related expenses; in the event the Indemnifying Party and the Indemnified Party cannot agree upon such counsel within ten days after the Defense Notice is provided, howeverthen the Indemnifying Party shall propose an alternate Defense Counsel, that upon rejection of any settlement and related expenses, which shall be subject again to the Indemnified Person Party’s approval. If the parties still fail to agree on Defense Counsel, then, at such time, they shall assume control of mutually agree in good faith on a procedure to determine the defense of such Third-Party Claim and the liability of the Indemnifying Person with respect to such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expensesDefense Counsel.
(bi) The Indemnified Person shall retain In the right to employ its own counsel and to discuss matters with event that the Indemnifying Person related Party shall fail to give the defense of any Third-Party ClaimDefense Notice, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and it shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject deemed to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in have elected not to conduct the defense of the Third-subject claim, and in such event the Indemnified Party Claimshall have the right to conduct such defense in good faith and to compromise and settle the claim without prior consent of the Indemnifying Party and the Indemnifying Party will be liable for all costs, including refraining from taking any position adverse expenses, settlement amounts or other Losses paid or incurred in connection therewith.
(ii) In the event that the Indemnifying Party does deliver a Defense Notice and thereby elects to conduct the defense of the subject claim, the Indemnified Party will cooperate with and make available to the Indemnifying PersonParty such assistance and materials as it may reasonably request, all at the expense of the Indemnifying Party, and the Indemnified Party shall have the right at its expense to participate in the defense assisted by counsel of its own choosing, provided that the Indemnified Party shall have the right to compromise and settle the claim only with the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed.
(ciii) If Without the Indemnifying Person fails to give notice prior written consent of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified PersonParty, the Indemnifying Person Party will not enter into any settlement of any Third Party Claim or cease to defend against such claim, if pursuant to or as a result of such settlement or cessation, (i) injunctive or other equitable relief would be imposed against the Indemnified Party, or (ii) such settlement or cessation would lead to liability or create any financial or other obligation on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder.
(iv) The Indemnifying Party shall no longer not be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person maycontrol, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify and the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense have sole control over, the defense or settlement of any claim to the extent that claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party (and with its own counsel the cost of such defense shall constitute an amount for which the Indemnified Party is entitled to indemnification hereunder).
(v) Any judgment entered or settlement agreed upon in the defense of any Third-Party Claim manner provided herein shall be binding upon the defense of Indemnifying Party, and shall conclusively be deemed to be an obligation with respect to which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time Party is entitled to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party Claimprompt indemnification hereunder.
Appears in 1 contract
Indemnification Procedure for Third Party Claims. (a) In the event that case of any claim asserted by a third party (the “Indemnified Person”) desires which claim is subject to make a claim against any other indemnification by either party (the “Indemnifying Person”) in connection with any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim or demand made by any Person not a party to this Agreement against the Indemnified Person (hereunder, ( a “Third-Party Claim”), such Indemnified Person must the party seeking indemnification (the “Indemnitee”) shall notify the Indemnifying Person other party (the “Indemnitor”) promptly after has actual knowledge of any such Third-Party Claim as to which indemnity may be sought (provided that failure to so notify shall not affect the Indemnitor’s obligations hereunder except to the extent materially prejudiced by such failure), and Indemnitee shall permit the Indemnitor, at its sole expense, to assume the defense of any such Third-Party Claim, provided that Indemnitee may participate in writingsuch defense or administration at Indemnitee’s sole expense (provided, however, that if a conflict of interest exists such that separate counsel must be engaged by Indemnitee and the Indemnitor, the Indemnitor shall be responsible for the reasonable fees and costs for such counsel for Indemnitee bug only for one separate counsel for all Indemnitees). The Indemnitor, in the defense of any such Third-Party Claim, shall not, except with the consent of Indemnitee, which Indemnitee agrees will not be unreasonably withheld, conditioned or delayed with respect to a monetary settlement, judgment or relief, (a) consent to entry of any judgment or enter into any settlement that provides for injunctive or other non-monetary relief against Indemnitee or (b) pursue any course of defense of any such Third-Party Claim subject to indemnification hereunder if Indemnitee shall reasonably and in good faith determine that the conduct of such defense could be expected to adversely affect in any material respect Indemnitee, its direct or indirect owners, the use of the Property to which the Third-Party Claim (relates. In addition, if the Indemnitor obtains and desires to accept from a “party to any such Third-Party Claim Notice”) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice of the Third-Party Claim; provided, that failure an offer to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Person shall have been actually and materially prejudiced as a result of such failure. Upon receipt of settle the Third-Party Claim Notice from solely for an amount certain, then Indemnitee agrees that if requested by the Indemnified PersonIndemnitor, the Indemnifying Person shall be entitledIndemnitee will, at the Indemnifying Person’s electionits sole expense, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the settlement and related expenses; provided, however, that upon rejection of any settlement and related expenses, the Indemnified Person shall assume control of the defense of such Third-Party Claim and thereafter the liability of the Indemnifying Person Indemnitor’s obligation with respect to such Third-Party Claim shall be limited to not exceed the costs of defense then incurred and the dollar amount or the monetary equivalent of the rejected settlement the Indemnitor proposed to accept immediately prior to such assumption by Indemnitee, it being agreed between Indemnitee and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel Indemnitor that Indemnitee will pay any greater amounts owing and to discuss matters with bear any other impositions in excess of those contemplated in the Indemnifying Person related to proposed settlement arrangement. In the event that the Indemnitor does not accept the defense of any matter as above provided, Indemnitee shall have the full right to defend against any such Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear Claim or demand and shall be solely responsible for entitled to settle or agree to pay in full such Third-Party Claim or demand, in its own costs sole discretion. In any event, the Indemnitor and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person Indemnitee shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse action or claim subject to this Agreement and each agrees to make its records available to the Indemnifying Person.
(c) If other with respect to such defense as reasonably requested and to the Indemnifying Person fails extent doing so does not compromise any claim of privilege or any other defense available to give notice of the assumption it. Acceptance of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt or of the administration of any Third-Party Claim Notice from by the Indemnified PersonIndemnitor shall be without prejudice to the Indemnitor’s right to assert at any time before or after accepting such defense or administration that it is not obligated to provide an indemnity, either in whole or in part, with respect to such Third-Party Claim. In the Indemnifying Person event that the Indemnitor asserts that it is not obligated to provide an indemnity to Indemnitee with respect to a Third-Party Claim, Indemnitee shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue have the right to defend such Third-Party Claim andClaim, in such eventand if the Indemnitor is adjudicated liable for indemnifying Indemnitee, the Indemnifying Person Indemnitor shall indemnify the Indemnified Person reimburse Indemnitee for all reasonable fees and its out-of-pocket expenses in connection therewith (provided it is a defending such Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement all settlements and judgments reasonably incurred as a result of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party Claim.
Appears in 1 contract
Sources: Purchase and Sale Agreement (DiamondRock Hospitality Co)
Indemnification Procedure for Third Party Claims. (a) In the event that subsequent to the Closing any party person or entity entitled to indemnification under this Agreement (the an “Indemnified PersonINDEMNIFIED PARTY”) desires to make a claim against receives notice of the assertion of any other party (the “Indemnifying Person”) in connection with any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim or demand made of the commencement of any action or proceeding by any Person person or entity who is not a party to this Agreement against the Indemnified Person or an Affiliate of a party to this Agreement (including, but not limited to, any domestic or foreign court or governmental authority, federal, state or local) (a “Third-Party ClaimTHIRD PARTY CLAIM”) against such Indemnified Party, against which a party to this Agreement is required to provide indemnification under this Agreement (an “INDEMNIFYING PARTY”), the Indemnified Party shall give written notice together with a statement of any available information regarding such Indemnified Person must notify claim (and attaching a copy of all papers served with respect to such claim) to the Indemnifying Person in writing, of the Third-Party Claim (a “Third-Party Claim Notice”) as promptly as reasonably possible after receipt, but in no event later than within fifteen (15) calendar days after receiptlearning of such claim (or within such shorter time as may be necessary to give the Indemnifying Party a reasonable opportunity to respond to such claim) (the “CLAIM NOTICE”). The Indemnifying Party shall have the right, by such upon written notice to the Indemnified Person Party (the “DEFENSE NOTICE”) within fifteen (15) days after receipt from the Indemnified Party of notice of such claim, which notice by the Third-Indemnifying Party Claimshall specify the counsel it will appoint to defend such claim (“DEFENSE COUNSEL”), to conduct at its expense the defense against such claim in its own name, or if necessary in the name of the Indemnified Party; provided, however, that failure to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Person shall have been actually and materially prejudiced as a result of such failure. Upon receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve the Defense Counsel, and in the event the Indemnifying Party and the Indemnified Party cannot agree upon such counsel within ten (10) days after the Defense Notice is provided, then the Indemnifying Party shall propose an alternate Defense Counsel, which shall be subject again to the Indemnified Party’s approval, provided that the Indemnifying Party shall be entitled to take such action as is reasonable under the circumstances to protect its rights pending agreement upon the selection of Defense Counsel. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume control of a Third Party Claim and shall pay the reasonable fees and expenses of counsel retained by the Indemnified Party if the Third Party Claim seeks injunctive or reject other equitable relief or if the Indemnified Party, in the Claim Notice, states that, based on advice of counsel, it believes that its interests in the Third Party Claims are or can reasonably be expected to be adverse to the interests of Indemnifying Party.
(i) In the event that the Indemnifying Party shall fail to give the Defense Notice within the time period described above, it shall be deemed to have elected not to conduct the defense of the subject claim, and in such event the Indemnified Party shall have the right to conduct such defense in good faith and to compromise and settle the claim without prior consent of the Indemnifying Party and such Indemnifying Party will be liable for all costs, expenses, settlement amounts or other Losses paid or incurred in connection therewith. If the Indemnifying Party is not entitled to assume the defense of a Third Party Claim because of reasons set forth in the last sentence of the preceding paragraph, the Indemnified Party may not settle the Third Party Claim without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, if such settlement would lead to any liability or create any other obligation of the Indemnifying Party.
(ii) In the event that the Indemnifying Party does deliver a Defense Notice within the time period described above and related expensesthereby elects to conduct the defense of the subject claim, the Indemnifying Party shall diligently conduct such defense and the Indemnified Party will cooperate with and make available to the Indemnifying Party such assistance and materials as it may reasonably request, all at the expense of the Indemnifying Party, and the Indemnified Party shall have the right at its expense to participate in the defense assisted by counsel of its own choosing.
(iii) The Indemnifying Party may enter into any settlement of any Third Party Claim or cease to defend against such claim; provided, however, that upon rejection the Indemnifying Party may not enter into any settlement of any settlement and related expenses, Third Party Claim or cease to defend against such claim without the prior written consent of the Indemnified Person shall assume control Party if pursuant to or as a result of such settlement or cessation, (A) injunctive or other equitable relief would be imposed against the Indemnified Party, or (B) such settlement or cessation would lead to liability or create any financial or other obligation on the part of the defense of such Third-Indemnified Party Claim and for which the liability of Indemnified Party is not entitled to indemnification hereunder.
(iv) Any final judgment entered or settlement agreed upon in the manner provided herein shall be binding upon the Indemnifying Person Party, and shall conclusively be deemed to be an obligation with respect to such Third-which the Indemnified Party Claim shall be limited is entitled to the amount or the monetary equivalent of the rejected settlement prompt indemnification hereunder. It is understood and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with agreed that if the Indemnifying Person related to Party is the defense of any Third-Party Claim, Company and/or the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) Stockholders collectively for purposes of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
paragraph (c) If the Indemnifying Person fails to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person Stockholders’ Representative shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement agent of such Third-Party Claim, persons respect to the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person matters arising hereunder in accordance with the terms provisions of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party ClaimSECTION 7.16.
Appears in 1 contract
Indemnification Procedure for Third Party Claims. In the event that any person or entity entitled to indemnification under this Agreement (an "Indemnified Party") asserts a claim for indemnification or receives notice of the assertion of any claim or of the commencement of any action or proceeding by any entity that is not a party to this Agreement or an Affiliate of a party to this Agreement (including, but not limited to any domestic or foreign court or governmental authority, federal, state or local) (a "Third Party Claim") against such Indemnified Party, against which a party to this Agreement is required to provide indemnification under this Agreement (an "Indemnifying Party"), the Indemnified Party shall give written notice together with a statement of any available information regarding such claim to the Indemnifying Party within 30 days after learning of such claim (or within such shorter time as may be necessary to give the Indemnifying Party a reasonable opportunity to respond to such claim). The Indemnifying Party shall have the right, upon written notice to the Indemnified Party (the "Defense Notice") within 30 days after receipt from the Indemnified Party of notice of such claim, which notice by the Indemnifying Party shall specify the counsel it will appoint to defend such claim ("Defense Counsel"), to conduct at its expense the defense against such claim in its own name, or if necessary in the name of the Indemnified Party; provided, however, that the Indemnified Party shall have the right to approve the Defense Counsel, which approval shall not be unreasonably withheld, and in the event the Indemnifying Party and the Indemnified Party cannot agree upon such counsel within ten days after the Defense Notice is provided, then the Indemnifying Party shall propose an alternate Defense Counsel, which shall be subject again to the Indemnified Party's approval. If the parties still fail to agree on Defense Counsel, then, at such time, they shall mutually agree in good faith on a procedure to determine the Defense Counsel.
(a) In the event that any party (the “Indemnifying Party shall fail to give the Defense Notice, it shall be deemed to have elected not to conduct the defense of the subject claim, and in such event the Indemnified Person”) desires Party shall have the right to make a conduct such defense in good faith and to compromise and settle the claim against any without prior consent of the Indemnifying Party and the Indemnifying Party will be liable for all costs, expenses, settlement amounts or other party (the “Indemnifying Person”) Losses paid or incurred in connection with any Losses for which therewith.
(b) In the event that the Indemnifying Party does deliver a Defense Notice and thereby elects to conduct the defense of the subject claim, the Indemnified Person Party will cooperate with and make available to the Indemnifying Party such assistance and materials as it may seek indemnification hereunder in respect reasonably request, all at the expense of a claim or demand made by any Person not a party to this Agreement against the Indemnifying Party, and the Indemnified Person (a “Third-Party Claim”)shall have the right at its expense to participate in the defense assisted by counsel of its own choosing, such provided that the Indemnified Person must notify Party shall have the right to compromise and settle the claim only with the prior written consent of the Indemnifying Person in writingParty, which consent shall not be unreasonably withheld or delayed.
(c) Without the prior written consent of the Third-Indemnified Party, the Indemnifying Party will not enter into any settlement of any Third Party Claim (a “Third-Party Claim Notice”) as promptly as reasonably possible after receiptor cease to defend against such claim, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice of the Third-Party Claim; provided, that failure if pursuant to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Person shall have been actually and materially prejudiced or as a result of such failure. Upon receipt settlement or cessation, (i) injunctive or other equitable relief would be imposed against the Indemnified Party, or (ii) such settlement or cessation would lead to liability or create any financial or other obligation on the part of the Third-Indemnified Party Claim Notice from for which the Indemnified PersonParty is not entitled to indemnification hereunder.
(d) The Indemnifying Party shall not be entitled to control, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the settlement and related expenses; provided, however, that upon rejection of any settlement and related expenses, the Indemnified Person shall assume control of the defense of such Third-Party Claim and the liability of the Indemnifying Person with respect to such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense have sole control over, the defense or settlement of any claim to the extent that claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party (and with its own counsel the cost of such defense shall constitute an amount for which the Indemnified Party is entitled to indemnification hereunder).
(e) Any judgment entered or settlement agreed upon in the defense of any Third-Party Claim manner provided herein shall be binding upon the defense of Indemnifying Party, and shall conclusively be deemed to be an obligation with respect to which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time Party is entitled to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party Claimprompt indemnification hereunder.
Appears in 1 contract
Sources: Share Exchange Agreement (Recycling Industries Inc)
Indemnification Procedure for Third Party Claims. (a) 6.5.1 In the event that subsequent to the Closing, any party Person that is or may be entitled to indemnification under this Agreement (the an “Indemnified PersonParty”) desires to make a claim against receives notice of the assertion of any other party (claim, issuance of any order or the “Indemnifying Person”) in connection with commencement of any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim action or demand made proceeding by any Person who is not a party to this Agreement against the Indemnified Person Party or an Affiliate of a Party, including, without limitation, any domestic or foreign court or Governmental Authority (a “Third-Third Party Claim”), against such Indemnified Person must notify the Party and for which a Party is or may be required to provide indemnification under this Agreement (an “Indemnifying Person in writingParty”), then such Indemnified Party shall give written notice thereof, together with a statement of the Third-any available information regarding such Third Party Claim to such Indemnifying Party within sixty (a “Third-Party Claim Notice”60) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by learning of such Indemnified Person of notice of the Third-Third Party Claim; provided, that failure to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Person shall have been actually and materially prejudiced as a result of such failure. Upon receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the settlement and related expenses; provided, however, that failure to give such written notice within any particular time period shall not adversely affect the Indemnified Party’s right to indemnification except, and to the extent that, the Indemnifying Party can show that the failure to give such notification on a timely basis adversely affected the Indemnifying Party’s ability to defend such Third Party Claim. The Indemnifying Party shall have the right upon rejection written notice to the Indemnified Party (the “Defense Notice”), within thirty (30) days after receipt from the Indemnified Party of notice of such Third Party Claim, to conduct, at its expense, the defense against such Third Party Claim in its own name, or if necessary in the name of the Indemnified Party. Without the prior written consent of the Indemnified Party, the Indemnifying Party will not enter into any settlement of any Third Party Claim or cease to defend against such Third Party Claim, if pursuant to or as a result of such settlement and related expensesor cessation, (a) injunctive or other equitable relief would be imposed against the Indemnified Person shall assume control of the defense of Party, or (b) each claimant or plaintiff in such Third-Third Party Claim and has not given to the liability of the Indemnifying Person Indemnified Party an unconditional release from all Liability with respect to such Third-Third Party Claim.
6.5.2 Notwithstanding anything contained in Section 6.5.1 to the contrary, the Indemnifying Party shall not be entitled to control, and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any Third Party Claim if any of the following conditions are not satisfied:
(a) the Indemnifying Party shall acknowledge in writing that it shall be limited fully responsible for all Losses relating to the amount or the monetary equivalent of the rejected settlement and related expenses.such proceeding;
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with must diligently defend such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.proceeding;
(c) If the Indemnifying Person fails to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from must furnish the Indemnified Person, Party with evidence that the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance financial resources of the Indemnifying PersonParty (or the funds available in the Escrow Account with respect to claims against the Escrow Account), in the Indemnified Party’s ability reasonable judgment, are and will be sufficient (when considering Losses in respect of all other outstanding claims) to fulfill its obligations satisfy any Losses relating to such proceeding;
(d) such proceeding shall not involve criminal actions or allegations of criminal conduct by the Indemnifying Party, and shall not involve claims for specific performance or other equitable relief; and
(e) there does not exist, in the Indemnified Party’s good faith judgment, based on the advice of outside legal counsel, a conflict of interest which, under this Article 10 applicable principles of legal ethics, could reasonably be expected to prohibit a single legal counsel from representing both the Indemnified Party and the Indemnifying Party in connection with such Third-Party Claimproceeding.
Appears in 1 contract
Indemnification Procedure for Third Party Claims. (a) In the event that any Promptly after receipt by an Indemnified Party of notice by a third party (including any Governmental Entity) of any complaint or the “commencement of any audit, investigation, action or proceeding with respect to which such Indemnified Person”) desires Party may be entitled to make a claim against receive payment from the other Party for any other party Damages, such Indemnified Party will notify Purchaser or Seller, as the case may be (the “Indemnifying Person”) in connection with any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim or demand made by any Person not a party to this Agreement against the Indemnified Person (a “Third-Party ClaimParty”), promptly following the Indemnified Party’s receipt of such Indemnified Person must notify the Indemnifying Person in writing, of the Third-Party Claim (a “Third-Party Claim Notice”) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person complaint or of notice of the Third-Party Claim; provided, that failure to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Person shall have been actually and materially prejudiced as a result commencement of such failure. Upon receipt of the Third-Party Claim Notice from the Indemnified Personaudit, the Indemnifying Person shall be entitledinvestigation, at the Indemnifying Person’s election, to assume action or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the settlement and related expensesproceeding; provided, however, that upon rejection the failure to so notify the Indemnifying Party will relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in the forfeiture by the Indemnifying Party of rights and defenses otherwise available to the Indemnifying Party with respect to such claim. The Indemnifying Party will have the right, within ten (10) days after written notice delivered to the Indemnified Party, to assume full responsibility for any settlement Damages (as the case may be) resulting from such audit, investigation, action or proceeding, to assume the defense of such audit, investigation, action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party and related expensesthe payment of the fees and disbursements of such counsel; provided, however, that the Indemnifying Party shall have acknowledged in writing to the Indemnified Party acknowledging and accepting its unqualified obligation to indemnify the Indemnified Party as provided hereunder. If, however, the Indemnifying Party declines or fails to assume the defense of the audit, investigation, action or proceeding on the terms provided above or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such ten (10)-day period, then the Indemnifying Party will pay the reasonable fees and disbursements of counsel for the Indemnified Party as incurred. In any audit, investigation, action or proceeding for which the Indemnifying Party has assumed the defense, the Indemnified Person shall assume control Party will have the right to participate in such matter and to retain its own counsel at the Indemnified Party’s own expense. The Indemnifying Party will at all times use reasonable efforts to keep the Indemnified Party reasonably apprised of the status of the defense of such Third-Party Claim and any matter the liability defense of which the Indemnifying Person Party has assumed and to cooperate in good faith with the Indemnified Party with respect to such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Personmatter.
(c) If the Indemnifying Person fails to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party Claim.
Appears in 1 contract
Indemnification Procedure for Third Party Claims. (a) In the event that an Indemnitee receives notice of the assertion of any claim or the commencement of any Action by a third party (the “Indemnified Person”) desires to make a claim against any other party (the “Indemnifying Person”) in connection with any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim or demand made by any Person not a party to which indemnity may be sought under the provisions of this Agreement against the Indemnified Person Article X (a “Third-Third Party Claim”), such Indemnified Person must the Indemnitee shall notify the Indemnifying Person Indemnitor in writing, writing of the Third-such Third Party Claim (such notice, a “Third-Notice of Claim”); provided that the failure or delay in notifying the Indemnitor of such Third Party Claim Notice”) as promptly as reasonably possible after receiptwill not relieve the Indemnitor of any Liability it may have to the Indemnitee, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice of the Third-Party Claim; provided, that failure to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except and only to the extent that such failure or delay causes actual prejudice to the Indemnifying Person shall have been actually and materially prejudiced as a result of such failure. Upon receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the settlement and related expenses; provided, however, that upon rejection of any settlement and related expenses, the Indemnified Person shall assume control of the defense of such Third-Party Claim and the liability of the Indemnifying Person Indemnitor with respect to such Third-Third Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expensesClaim.
(b) The Indemnified Person shall retain Indemnitor will have 20 days from the right date on which the Indemnitor received the Notice of Claim (the “Indemnitor Defense Review Period”) to employ its own counsel and notify the Indemnitee that the Indemnitor desires to discuss matters with the Indemnifying Person related to assume the defense or prosecution of such Third Party Claim and any Thirdlitigation resulting therefrom (a “Third Party Defense”). If the Indemnitor assumes the Third Party Defense in accordance herewith, (i) the Indemnitee may retain separate co-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreementcounsel, but the Indemnified Person shall bear and shall be solely responsible for its own costs fees and expenses in connection with of such participation; provided, however, that, subject to Section 10.3(a) above, all decisions counsel shall not be at the expense of the Indemnifying Person shall be final Indemnitor unless the employment of such counsel has been specifically authorized in writing by the Indemnitor, and the Indemnified Person shall cooperate with the Indemnifying Person in all respects participate in the defense of the Third-Third Party Claim, including refraining from taking any position adverse but the Indemnitor shall control the defense thereof; (ii) the Indemnitor will not consent to the Indemnifying Personentry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnitee which shall not be unreasonably withheld, delayed or conditioned; (iii) the Indemnitor shall be conclusively deemed to have acknowledged that the Third Party Claim is within the scope of its indemnity obligation under this Agreement; (iv) the Indemnitor shall conduct the Third Party Defense actively and diligently and provide reasonable updates in connection with the Third Party Defense to the Indemnitee; and (v) the Indemnitee will provide reasonable cooperation in the Third Party Defense. Notwithstanding the foregoing, if counsel for the Indemnitee reasonably determines that there is a conflict between the positions of the Indemnitor and the Indemnitee in conducting the defense of such Action or that there are legal defenses available to such Indemnitee different from or in addition to those available to the Indemnitor, then counsel for the Indemnitee shall be entitled, if the Indemnitee so elects, to conduct the defense to the extent reasonably determined by such counsel to protect the interests of the Indemnitee, at the expense of the Indemnitor.
(c) If the Indemnifying Person fails Indemnitor does not assume the Third Party Defense prior to give notice the end of the assumption Indemnitor Defense Review Period, the Indemnitee shall have the right to assume the Third Party Defense at the expense of the Indemnitor; provided, however, that the Indemnitor shall have the right, at its expense, to participate in such Third Party Defense but the Indemnitee shall control the investigation, defense and settlement thereof. The Indemnitee shall conduct the Third Party Defense actively and diligently, and the Indemnitor will provide reasonable cooperation in the Third Party Defense. The Indemnitee shall not consent to the entry of any Third-judgment or enter into any settlement with respect to the Third Party Claim within a reasonable time period in any manner without the consent of the Indemnitor (such consent not to exceed forty-five be unreasonably withheld, delayed or conditioned).
(45d) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer The Indemnitor will not be entitled to assume the Third Party Defense if:
(but shall continue to be entitled to participate ini) such defense. The Indemnified Person may, at its option, continue to defend such Third-the Third Party Claim andseeks, in such eventaddition to or in lieu of monetary damages, any injunctive or other equitable relief;
(ii) the Third Party Claim relates to or arises in connection with any criminal Action, indictment or allegation;
(iii) the Indemnitor fails to provide reasonable assurance to the Indemnitee of its financial capacity to prosecute the Third Party Defense;
(iv) the Third Party Claim could give rise to Losses that are more than the remaining unreserved amount of the Escrow Fund; or
(v) the Third Party Claim relates to a breach of Section 5.22.
(e) Notwithstanding anything in this Agreement to the Contrary, for the purposes of any notices under this Article X, the Indemnifying Person Buyer shall indemnify have satisfied its obligations by providing notice to the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person Representatives in accordance with the terms Section 11.1.
(f) The provisions of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; Section 10.6(b), (b) assumes the defense of such Third-Party Claim; c), and (cd) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability shall not apply to fulfill its obligations under this Article 10 in connection with such Third-Third Party ClaimClaims pertaining to Taxes.
Appears in 1 contract
Indemnification Procedure for Third Party Claims. (a) Any party making a claim for indemnification under this Agreement (an “Indemnitee”) shall notify the indemnifying party (an “Indemnitor”) of the claim (a “Claim Notice”) in writing promptly (and in any event within 30 days) after receiving written notice of any action, lawsuit, proceeding, investigation or other claim against it by a third party, describing the claim, the amount or estimated amount thereof, and the basis therefor; provided that the failure to so notify an Indemnitor shall not relieve the Indemnitor of its obligations hereunder, except to the extent that the Indemnitor is actually prejudiced thereby. Any Indemnitor shall be entitled to participate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to an Indemnitee’s claim for indemnification at such Indemnitor’s expense, and at its option (subject to the limitations set forth below) shall be entitled to assume the defense thereof by giving notice to the Indemnitee (the “Defense Notice”) within 30 days of receiving a Claim Notice and appointing counsel reasonably acceptable to the Indemnitee to be the lead counsel in connection with such defense. In the event that the Indemnitor shall fail to give the Defense Notice, it shall be deemed, with respect to any party claims other than pursuant to Section 8.1(c), to have elected not to conduct the defense of the subject claim, and in such event the Indemnitee shall have the right to conduct such defense but shall require the prior written consent of the Indemnitor to compromise or settle the claim (which will not be unreasonably withheld, conditioned or delayed) and the “Indemnified Person”Indemnitor will be liable for all costs, expenses, settlement amounts or other Losses paid or incurred in connection therewith to the extent Indemnitor would otherwise be liable for such Losses in accordance with Section 8.1 or 8.2, as applicable.
(b) desires Notwithstanding the foregoing, with respect to make a any claims other than pursuant to Section 8.1(c), (i) the Indemnitee shall be entitled to participate in the defense of such claim against any other party and to employ counsel of its choice for such purpose; provided that the fees and expenses of such separate counsel shall be borne by the Indemnitee; (ii) the “Indemnifying Person”Indemnitor shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnitee if (A) the claim for indemnification relates to or arises in connection with any Losses for criminal proceeding, action, indictment, allegation or investigation; (B) the claim primarily seeks an injunction or other equitable relief against the Indemnitee; (C) upon petition by the Indemnitee, the appropriate court rules that the Indemnitor failed or is failing to vigorously prosecute or defend such claim; or (D) it is reasonable to expect that the Loss relating to such claim would materially exceed the maximum amount that such Indemnitee could then be entitled to recover under the applicable provisions of this Agreement; and (iii) if the Indemnitor shall control the defense of any such claim, the Indemnitor shall obtain the prior written consent of the Indemnitee (which the Indemnified Person may seek indemnification hereunder in respect shall not be unreasonably withheld, conditioned or delayed) before entering into any settlement of a claim or demand made by any Person not a party ceasing to this Agreement against the Indemnified Person (a “Third-Party Claim”)defend such claim if, such Indemnified Person must notify the Indemnifying Person in writing, of the Third-Party Claim (a “Third-Party Claim Notice”) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice of the Third-Party Claim; provided, that failure pursuant to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Person shall have been actually and materially prejudiced or as a result of such failure. Upon receipt of settlement or cessation, injunctive or other equitable relief will be imposed against the Third-Party Claim Notice Indemnitee or if such settlement does not expressly and unconditionally release the Indemnitee from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement all Liabilities and the Indemnified Person shall have the right to approve or reject the settlement and related expenses; provided, however, that upon rejection of any settlement and related expenses, the Indemnified Person shall assume control of the defense of such Third-Party Claim and the liability of the Indemnifying Person obligations with respect to such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expensesclaim, without prejudice.
(c) Notwithstanding the rights of the Indemnitee pursuant to Sections 8.3(a) and (b), with respect to any third-party claims arising under Section 8.1(c), the Indemnitee shall have no rights or obligations, including with respect to conducting any defense related to such claims, except that the Indemnitor may not settle any such claim without the prior written consent of the Indemnitee (not to be unreasonably withheld, conditioned or delayed) if the Indemnitee will be obligated to pay any monetary damages or have imposed against it any injunctive or other equitable relief.
(d) The Indemnified Person shall retain Indemnitee will cooperate with and make available to the right Indemnitor such assistance and materials as it may reasonably request. To the extent the Indemnitee elects to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a8.3(b)(i) above, all decisions the Indemnitee shall not have the right to compromise and settle the claim without the prior written consent of the Indemnifying Person Indemnitor, which consent shall not be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claimunreasonably withheld, including refraining from taking any position adverse to the Indemnifying Personconditioned or delayed.
(c) If the Indemnifying Person fails to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party Claim.
Appears in 1 contract
Sources: Asset Purchase Agreement (Amergent Hospitality Group Inc.)
Indemnification Procedure for Third Party Claims. (a) IX.3.1 In the event that subsequent to the Closing any party Person entitled to indemnification under this Agreement (an "INDEMNIFIED PARTY") receives notice of the “Indemnified Person”) desires to make a claim against assertion of any other party (claim, issuance of any order or the “Indemnifying Person”) in connection with commencement of any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim action or demand made proceeding by any Person who is not a party to this Agreement or an Affiliate of a party, including, without limitation, any domestic or foreign court or Governmental Authority (a " THIRD PARTY CLAIM"), against such Indemnified Party, against which a party to this Agreement is required to provide indemnification under this Agreement (an "INDEMNIFYING PARTY"), the Indemnified Person (Party shall give written notice thereof together with a “Third-Party Claim”), statement of any available information regarding such Indemnified Person must notify claim to the Indemnifying Person in writing, of the Third-Party Claim within thirty (a “Third-Party Claim Notice”30) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receiptlearning of such claim (or within such shorter time as may be necessary, by in the Indemnified Party's reasonable judgment, to give the Indemnifying Party a reasonable opportunity to respond to and defend such claim). The Indemnifying Party shall have the right, upon written notice to the Indemnified Person Party (the "DEFENSE NOTICE") within ten days (10) after receipt from the Indemnified Party of notice of such claim, to conduct at its expense the Third-Party Claimdefense against such claim in its own name, or if necessary in the name of the Indemnified Party; provided, however, that failure to give a Third-the -------- ------- Indemnified Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Person shall have been actually and materially prejudiced as a result of such failure. Upon receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the defense counsel selected by the Indemnifying Party, which approval shall not be unreasonably withheld, and in the event the Indemnifying Party and the Indemnified Party cannot agree upon such counsel within ten (10) days after the Defense Notice is provided, then the Indemnifying Party shall propose an alternate defense counsel, who shall be subject again to the Indemnified Party's approval.
IX.3.2 In the event that the Indemnifying Party shall fail to timely give the Defense Notice, it shall be deemed to have elected not to conduct the defense of the subject claim, and in such event the Indemnified Party shall have the right to conduct such defense in good faith at the cost and expense of the Indemnifying Party and the Indemnifying Party shall reimburse the Indemnified Party for all costs, expenses and settlement and related expensesamounts actually paid in connection therewith; provided, however, that upon rejection of any settlement and related expenses, -------- ------- under no circumstances shall the Indemnified Person shall assume control of the defense of such Third-Party compromise or settle any Third Party Claim and without the liability prior written consent of the Indemnifying Person with respect to such Third-Party Claim shall be limited to (which, in the amount or the monetary equivalent case of the rejected settlement and related expensesMembers, may be granted by the Member Representative (as defined in Section 9.13)), which consent shall not be ------------ unreasonably withheld or delayed.
(b) The Indemnified Person shall retain IX.3.3 In the right to employ its own counsel and to discuss matters with event that the Indemnifying Person related Party does elect to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in conduct the defense of the Third-subject claim, the Indemnified Party Claim, including refraining from taking any position adverse will cooperate with and make available to the Indemnifying Person.
(c) If Party such assistance and materials as may be reasonably requested by it, all at the expense of the Indemnifying Person fails Party, and the Indemnified Party shall have the right at its expense to give notice participate in the defense assisted by counsel of its own choosing, provided that the Indemnified Party shall have the right to compromise and settle the claim only with the prior written consent of the assumption Indemnifying Party, which consent shall not be unreasonably withheld or delayed. Without the prior written consent of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified PersonParty, the Indemnifying Person Party will not enter into any settlement of any Third Party Claim or cease to defend against such claim, if pursuant to or as a result of such settlement or cessation, (i) injunctive or other equitable relief would be imposed against the Indemnified Party, or (ii) such settlement or cessation would lead to liability or create any financial or other obligation on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder, or (iii) such settlement includes a written admission of guilt. The Indemnifying Party shall no longer not be entitled to assume (but control, and the Indemnified Party shall continue to be entitled to participate inhave sole control over, the defense or settlement of any claim (A) to the extent that claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party or (B) in a proceeding to which the Indemnifying Party is also a party and the Indemnified Party determines in good faith that joint representation would be inappropriate (and in each case the cost of such defensedefense shall constitute an amount for which the Indemnified Party is entitled to indemnification hereunder). The If an offer is made to settle a Third Party Claim which all parties to such Third Party Claim (including the Indemnifying Party) are prepared to settle and which offer the Indemnifying Party is permitted to settle under this Section 9.3.3 only upon the prior written consent of the Indemnified Person mayParty, at ------------- the Indemnifying Party will give prompt written notice to the Indemnified Party to that effect. If the Indemnified Party fails to consent to such firm offer within (30) calendar days after its optionreceipt of such notice, the Indemnified Party may continue to contest or defend such Third-Third Party Claim and, in such event, the maximum liability of the Indemnifying Person shall indemnify Party as to such Third Party Claim will not exceed the Indemnified Person for all reasonable fees amount of such settlement offer, plus costs and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses paid or incurred by the Indemnified Person in connection with such Claim; (b) assumes Party through the defense end of such Third-Party Claim; (30) day period.
IX.3.4 Any judgment entered, order issued or settlement agreed upon in the manner provided herein shall be binding upon the Indemnifying Party, and (c) takes such other actions as shall conclusively be deemed to be an obligation with respect to which the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability Party is entitled to fulfill its obligations under this Article 10 in connection with such Third-Party Claimprompt indemnification hereunder.
Appears in 1 contract
Indemnification Procedure for Third Party Claims. (a) 9.3.1 In the event that subsequent to the Closing any party Person entitled to indemnification under this Agreement (an "Indemnified Party") receives notice of the “Indemnified Person”) desires to make a claim against assertion of any other party (claim, issuance of any order or the “Indemnifying Person”) in connection with commencement of any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim action or demand made proceeding by any Person who is not a party to this Agreement or an Affiliate of a party, including, without limitation, any domestic or foreign court or Governmental Authority
(a " Third Party Claim"), against such Indemnified Party, against which a party to this Agreement is required to provide indemnification under this Agreement (an "Indemnifying Party"), the Indemnified Person (Party shall give written notice thereof together with a “Third-Party Claim”), statement of any available information regarding such Indemnified Person must notify claim to the Indemnifying Person in writing, of the Third-Party Claim within thirty (a “Third-Party Claim Notice”30) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receiptlearning of such claim (or within such shorter time as may be necessary, by in the Indemnified Party's reasonable judgment, to give the Indemnifying Party a reasonable opportunity to respond to and defend such claim). The Indemnifying Party shall have the right, upon written notice to the Indemnified Person Party (the "Defense Notice") within ten days (10) after receipt from the Indemnified Party of notice of such claim, to conduct at its expense the Third-Party Claimdefense against such claim in its own name, or if necessary in the name of the Indemnified Party; provided, however, that failure to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Person shall have been actually and materially prejudiced as a result of such failure. Upon receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the defense counsel selected by the Indemnifying Party, which approval shall not be unreasonably withheld, and in the event the Indemnifying Party and the Indemnified Party cannot agree upon such counsel within ten (10) days after the Defense Notice is provided, then the Indemnifying Party shall propose an alternate defense counsel, who shall be subject again to the Indemnified Party's approval.
9.3.2 In the event that the Indemnifying Party shall fail to timely give the Defense Notice, it shall be deemed to have elected not to conduct the defense of the subject claim, and in such event the Indemnified Party shall have the right to conduct such defense in good faith at the cost and expense of the Indemnifying Party and the Indemnifying Party shall reimburse the Indemnified Party for all costs, expenses and settlement and related expensesamounts actually paid in connection therewith; provided, however, that upon rejection of any settlement and related expenses, under no circumstances shall the Indemnified Person shall assume control of the defense of such Third-Party compromise or settle any Third Party Claim and without the liability prior written consent of the Indemnifying Person with respect to such Third-Party Claim shall be limited to (which, in the amount or the monetary equivalent case of the rejected settlement and related expensesMembers, may be granted by the Member Representative (as defined in Section 9.13)), which consent shall not be unreasonably withheld or delayed.
(b) The Indemnified Person shall retain 9.3.3 In the right to employ its own counsel and to discuss matters with event that the Indemnifying Person related Party does elect to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in conduct the defense of the Third-subject claim, the Indemnified Party Claim, including refraining from taking any position adverse will cooperate with and make available to the Indemnifying Person.
(c) If Party such assistance and materials as may be reasonably requested by it, all at the expense of the Indemnifying Person fails Party, and the Indemnified Party shall have the right at its expense to give notice participate in the defense assisted by counsel of its own choosing, provided that the Indemnified Party shall have the right to compromise and settle the claim only with the prior written consent of the assumption Indemnifying Party, which consent shall not be unreasonably withheld or delayed. Without the prior written consent of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified PersonParty, the Indemnifying Person Party will not enter into any settlement of any Third Party Claim or cease to defend against such claim, if pursuant to or as a result of such settlement or cessation, (i) injunctive or other equitable relief would be imposed against the Indemnified Party, or (ii) such settlement or cessation would lead to liability or create any financial or other obligation on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder, or (iii) such settlement includes a written admission of guilt. The Indemnifying Party shall no longer not be entitled to assume (but control, and the Indemnified Party shall continue to be entitled to participate inhave sole control over, the defense or settlement of any claim (A) to the extent that claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party or (B) in a proceeding to which the Indemnifying Party is also a party and the Indemnified Party determines in good faith that joint representation would be inappropriate (and in each case the cost of such defensedefense shall constitute an amount for which the Indemnified Party is entitled to indemnification hereunder). The If an offer is made to settle a Third Party Claim which all parties to such Third Party Claim (including the Indemnifying Party) are prepared to settle and which offer the Indemnifying Party is permitted to settle under this Section 9.3.3 only upon the prior written consent of the Indemnified Person mayParty, at the Indemnifying Party will give prompt written notice to the Indemnified Party to that effect. If the Indemnified Party fails to consent to such firm offer within (30) calendar days after its optionreceipt of such notice, the Indemnified Party may continue to contest or defend such Third-Third Party Claim and, in such event, the maximum liability of the Indemnifying Person shall indemnify Party as to such Third Party Claim will not exceed the Indemnified Person for all reasonable fees amount of such settlement offer, plus costs and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses paid or incurred by the Indemnified Person in connection with such Claim; (b) assumes Party through the defense end of such Third-Party Claim; (30) day period.
9.3.4 Any judgment entered, order issued or settlement agreed upon in the manner provided herein shall be binding upon the Indemnifying Party, and (c) takes such other actions as shall conclusively be deemed to be an obligation with respect to which the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability Party is entitled to fulfill its obligations under this Article 10 in connection with such Third-Party Claimprompt indemnification hereunder.
Appears in 1 contract
Indemnification Procedure for Third Party Claims. (a) In the event that subsequent to the Closing, any party Person that is or may be entitled to indemnification under this Agreement (the an “Indemnified PersonParty”) desires to make a claim against receives notice of the assertion of any other party (claim, issuance of any order or the “Indemnifying Person”) in connection with commencement of any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim action or demand made proceeding by any Person who is not a party to this Agreement against the Indemnified Person Party or an Affiliate of a Party, including, without limitation, any domestic or foreign court or Governmental Authority (a “Third-Third Party Claim”), against such Indemnified Person must notify the Party and for which a Party is or may be required to provide indemnification under this Agreement (an “Indemnifying Person in writingParty”), then such Indemnified Party shall give written notice thereof, together with a statement of the Third-any available information regarding such Third Party Claim to such Indemnifying Party within sixty (a “Third-Party Claim Notice”60) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by learning of such Indemnified Person of notice of the Third-Third Party Claim; provided, that failure to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Person shall have been actually and materially prejudiced as a result of such failure. Upon receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the settlement and related expenses; provided, however, that failure to give such written notice within any particular time period shall not adversely affect the Indemnified Party’s right to indemnification except, and to the extent that, the Indemnifying Party can show that the failure to give such notification on a timely basis adversely affected the Indemnifying Party’s ability to defend such Third Party Claim. The Indemnifying Party shall have the right upon rejection written notice to the Indemnified Party (the “Defense Notice”), within thirty (30) days after receipt from the Indemnified Party of notice of such Third Party Claim, to conduct, at its expense, the defense against such Third Party Claim in its own name, or if necessary in the name of the Indemnified Party. Without the prior written consent of the Indemnified Party, the Indemnifying Party will not enter into any settlement of any Third Party Claim or cease to defend against such Third Party Claim, if pursuant to or as a result of such settlement and related expensesor cessation, (a) injunctive or other equitable relief would be imposed against the Indemnified Person shall assume control of the defense of Party, or (b) each claimant or plaintiff in such Third-Third Party Claim and has not given to the liability of the Indemnifying Person Indemnified Party an unconditional release from all Liability with respect to such Third-Third Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expensesClaim.
(b) The Indemnified Person shall retain Notwithstanding anything contained in Section 6.5(a) to the right to employ its own counsel and to discuss matters with contrary, the Indemnifying Person related Party shall not be entitled to control, and the defense of any Third-Indemnified Party Claimshall be entitled to have sole control over, the defense or settlement of which has been assumed any Third Party Claim if any of the following conditions are not satisfied:
(i) the Indemnifying Party must diligently defend such proceeding;
(ii) such proceeding shall not involve criminal actions or allegations of criminal conduct by the Indemnifying Person pursuant Party, and shall not involve any claims related to Section 10.3(aTaxes, or any claims that are primarily for specific performance or other equitable relief; and
(iii) of this Agreementthere does not exist, but in the Indemnified Person shall bear Party’s good faith judgment, based on the advice of outside legal counsel, a conflict of interest which, under applicable principles of legal ethics, could reasonably be expected to prohibit a single legal counsel from representing both the Indemnified Party and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person Party in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Personsuch proceeding.
(c) If Notwithstanding anything to the contrary contained herein, any Indemnified Party may offset any Losses related to any claims against an Indemnifying Party pursuant to this Agreement, as determined pursuant to a final judgment of a Governmental Authority of competent jurisdiction or written agreement of the Parties hereto, in whole or in part, against any amounts that may otherwise be payable or distributable to the Indemnifying Person fails to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party ClaimParty.
Appears in 1 contract
Indemnification Procedure for Third Party Claims. (a) In the event that any claim or demand, for which an Indemnitor may be liable to an Indemnitee hereunder is asserted or sought to be collected by a third party (the “Indemnified Person”) desires to make a claim against any other party (the “Indemnifying Person”) in connection with any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim or demand made by any Person not a party to this Agreement against the Indemnified Person (a “Third-Third Party Claim”), such Indemnified Person must the Indemnitee shall promptly notify the Indemnifying Person Indemnitor in writing, writing of the Third-such Third Party Claim (a “Third-Party Claim NoticeNotice of Claim”) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice of the Third-Party Claim); provided, however, that a failure by an Indemnitee to give a Third-Party Claim Notice on a timely basis provide notice promptly shall not affect the indemnification provided hereunder except rights or obligations of such Indemnitee unless and to the extent that the Indemnifying Person Indemnitor shall have been actually and materially prejudiced as a result of such failure. Upon receipt The Notice of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate specify in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-reasonable detail each individual Third Party Claim, the Indemnifying Person shall give date such Third Party Claim was made, the Indemnified Person ten (10) calendar days’ notice prior to executing basis for any settlement agreement anticipated Loss and the Indemnified Person shall have the right to approve or reject the settlement and related expenses; provided, however, that upon rejection of any settlement and related expenses, the Indemnified Person shall assume control nature of the defense misrepresentation, breach of warranty, breach of covenant or agreement or claim to which each such Third-Third Party Claim is related and the liability computation of the Indemnifying Person amount (in each case, to the extent known and reasonably quantifiable) to which such Indemnitee claims to be entitled hereunder. The Indemnitee shall enclose with the Notice of Claim a copy of all papers served with respect to such Third-Third Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement Claim, if any, and related expensesany other documents evidencing such Third Party Claim.
(b) The Indemnified Person shall retain Within 30 days following the right to employ its own counsel and to discuss matters with date of delivery by the Indemnifying Person related to the defense Indemnitee of any Third-Party such Notice of Claim, the Indemnitor shall have the right, but not the obligation to assume the defense or prosecution of which has been assumed such Third Party Claim and any litigation resulting therefrom with counsel of its choice reasonably acceptable to the Indemnitee and at its sole cost and expense (a “Third Party Defense”); provided, that the Indemnitor shall not be entitled to assume the defense or prosecution of any Third Party Claim (unless otherwise agreed to in writing by the Indemnifying Person Indemnitee) and shall, if the Loss that is the subject of the Third Party Claim is one for which the Indemnitee is entitled to indemnification pursuant to Section 10.3(a9.2 or Section 9.3, as applicable, pay the reasonable and documented fees and expenses of outside counsel retained by the Indemnitee, if (A) and only to the extent that, the Third Party Claim involves any criminal or quasi-criminal Legal Proceeding, indictment, allegation or investigation; (B) the Third Party Claim seeks an injunction or equitable relief as the primary source of relief; (C) more than fifty percent (50%) of this Agreement, but the Indemnified Person shall bear and shall Losses reasonably expected to be solely responsible for its own costs and expenses incurred in connection with such participationThird Party Claim (after the application of any limitations that may be set forth in this Agreement) would be borne by the Indemnitee; provided, however, that, subject to Section 10.3(a(D) above, all decisions the Indemnitee has been advised by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnitor and the Indemnitee (other than one arising from the existence of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunderobligations under this Agreement). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (bE) assumes the defense of Indemnitor has failed or is failing to reasonably defend or prosecute such Third-Third Party Claim; and or (cF) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Third Party Claim.Claim is set forth on Section 9.4(b)
Appears in 1 contract
Indemnification Procedure for Third Party Claims. (a) In the event that subsequent to the Closing any party person or entity entitled to indemnification under this Agreement (the an “Indemnified PersonParty”) desires to make asserts a claim against for indemnification or receives notice of the assertion of any other party (the “Indemnifying Person”) in connection with any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim or demand made of the commencement of any action or proceeding by any Person entity who is not a party to this Agreement against the Indemnified Person or an Affiliate of such a party (including, but not limited to any domestic or foreign court or Governmental Authority, federal, state or local) (a “Third-Third Party Claim”) against such Indemnified Party, against which a party to this Agreement is required to provide indemnification under this Agreement (an “Indemnifying Party”), the Indemnified Party shall give written notice together with a statement of any available information regarding such Indemnified Person must notify claim to the Indemnifying Person in writingParty within thirty (30) days after learning of such claim (or within such shorter time as may be necessary to give the Indemnifying Party a reasonable opportunity to respond to such claim). The Indemnifying Party shall have the right, of upon written notice to the Third-Indemnified Party Claim (a the “Third-Party Claim Defense Notice”) as promptly as reasonably possible after receipt, but in no event later than fifteen within thirty (1530) calendar days after receipt, by such receipt from the Indemnified Person Party of notice of such claim, (which notice by the Third-Indemnifying Party Claimshall specify the counsel it will appoint to defend such claim (“Defense Counsel”)), to conduct at its expense the defense against such claim in its own name, or if necessary in the name of the Indemnified Party; provided, however, that failure to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Person shall have been actually and materially prejudiced as a result of such failure. Upon receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the settlement Defense Counsel and related expenses; provided, however, that upon rejection of any settlement and related expenses, in the Indemnified Person shall assume control of the defense of such Third-Party Claim and the liability of event the Indemnifying Person with respect to such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with Party cannot agree upon such counsel within ten (10) days after the Defense Notice is provided, then the Indemnifying Person in all respects in Party shall propose an alternate Defense Counsel, which shall be subject again to the Indemnified Party’s approval.
A. In the event that the Indemnifying Party shall fail to give such notice, it shall be deemed to have elected not to conduct the defense of the Third-subject claim, and in such event the Indemnified Party shall have the right to conduct such defense in good faith and to compromise and settle the claim without prior consent of the Indemnifying Party and the Indemnifying Party will be liable for all costs, expenses, settlement amounts or other Losses paid or incurred in connection therewith.
B. In the event that the Indemnifying Party does elect to conduct the defense of the subject claim, the Indemnified Party will cooperate with and make available to the Indemnifying Party such assistance and materials as may be reasonably requested by it, all at the expense of the Indemnifying Party, and the Indemnified Party shall have the right at its expense to participate in the defense assisted by counsel of its own choosing, provided that the Indemnified Party shall have the right to compromise and settle the claim only with the prior written consent of the Indemnifying Party, which consent shall not be reasonably withheld or delayed. Without the prior written consent of the Indemnified Party, the Indemnifying Party will not enter into any settlement of any Third Party Claim or cease to defend against such claim, if pursuant to or as a result of such settlement or cessation, (i) injunctive or other equitable relief would be imposed against the Indemnified Party or its Affiliates, or (ii) such settlement or cessation would lead to liability or create any financial or other obligation on the part of the Indemnified Party or its Affiliates for which the Indemnified Party is not entitled to indemnification hereunder. The Indemnifying Party shall not be entitled to control, and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent that claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party or its Affiliates (and the cost of such defense shall constitute a Loss for which the Indemnified Party is entitled to indemnification hereunder). If a firm decision is made to settle a Third Party Claim, including refraining from taking any position adverse to which offer the Indemnifying Person.
(c) If Party is permitted to settle under this Section 9.4B, and the Indemnifying Person fails Party desires to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not accept and agree to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Personsuch offer, the Indemnifying Person shall no longer be entitled Party will give written notice to assume the Indemnified Party to that effect. If the Indemnified Party fails to consent to such firm offer within thirty (but shall 30) calendar days after its receipt of such notice, the Indemnified Party may continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to contest or defend such Third-Third Party Claim and, in such event, the maximum liability of the Indemnifying Person shall indemnify Party as to such Third Party Claim will not exceed the Indemnified Person for all reasonable fees amount of such settlement offer, plus costs and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses paid or incurred by the Indemnified Person in connection with such Claim; (b) assumes Party through the defense end of such Third-Party Claim; thirty (30) day period.
C. Any judgment entered or settlement agreed upon in the manner provided herein shall be binding upon the Indemnifying Party, and (c) takes such other actions as shall conclusively be deemed to be an obligation with respect to which the Indemnified Person may reasonably request Party is entitled to prompt indemnification hereunder.
D. A failure by an Indemnified Party to give timely, complete or accurate notice as assurance provided in Section 9.4 will not affect the rights or obligations of any party hereunder except and only to the extent that, as a result of such failure, any party entitled to receive such notice was deprived of its right to recover any payment under its applicable insurance coverage or was otherwise directly and materially damaged as a result of such failure to give timely notice.
E. The Indemnifying Party shall be subrogated to the Indemnified Party’s rights of recovery to the extent of any Loss satisfied by the Indemnifying Party. The Indemnified Party shall execute and deliver such instruments and papers as are necessary to assign such rights and assist in the exercise thereof, including access to books and records of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party ClaimCompany.
Appears in 1 contract
Sources: Purchase and Exchange Agreement (Halo Technology Holdings, Inc.)
Indemnification Procedure for Third Party Claims. In the event that subsequent to the Closing any person or entity entitled to indemnification under this Agreement (an "Indemnified Party") asserts a claim for indemnification or receives notice of the assertion of any claim or of the commencement of any action or proceeding by any entity who is not a party to this Agreement or an Affiliate of such a party (including, but not limited to any domestic or foreign court, government, or Governmental Authority or instrumentality, federal state or local) (a "Third Party Claim") against such Indemnified Party, against which a party to this Agreement is required to provide indemnification under this Agreement (an "Indemnifying Party"), the Indemnified Party shall give written notice together with a statement of any available information regarding such claim to the Indemnifying Party within sixty (60) days after learning of such claim (or within such shorter time as may be necessary to give the Indemnifying Party a reasonable opportunity to respond to such claim. The Indemnifying Party shall have the right, upon written notice to the Indemnified Party (the "Defense Notice") within thirty (30) days after receipt from the Indemnified Party of notice of such claim, which notice by the Indemnifying Party shall specify the counsel it will appoint to defend such claim ("Defense Counsel"), to conduct at its expense the defense against such claim in its own name, or if necessary in the name of the Indemnified Party; provided, however, that the Indemnified Party shall have the right to approve the Defense Counsel, which approval shall not be unreasonably withheld, and in the event the Indemnifying Party shall propose an alternate Defense Counsel, which shall be subject again to the Indemnified Party's approval.
(a) In the event that any party (the “Indemnifying Party shall fail to give such notice within 30 days, it shall be deemed to have elected not to conduct the defense of the subject claim, and in such event the Indemnified Person”) desires Party shall have the right to make a conduct such defense in good faith and to compromise and settle the claim against any without prior consent of the Indemnifying Party and the Indemnifying Party will be liable for all costs, expense, settlement amounts or other party (the “Indemnifying Person”) Losses paid or incurred in connection with any Losses for which therewith.
(b) In the event that the Indemnifying Party does elect to conduct the defense of the subject claim, the Indemnified Person Party will cooperate with and make available to the Indemnifying Party such assistance and materials as may seek indemnification hereunder in respect be reasonably requested by it, all at the expense of a claim or demand made by any Person not a party to this Agreement against the Indemnifying Party, and the Indemnified Person (a “Third-Party Claim”)shall have the right at its expense to participate in the defense assisted by counsel of its own choosing, such provided that the Indemnified Person must notify Party shall have the right to compromise and settle the claim only with the prior written consent of the Indemnifying Person in writingParty, which consent shall not be unreasonably withheld or delayed. Without the prior written consent of the Third-Indemnified Party, the Indemnifying Party will not enter into any settlement of any Third Party Claim (a “Third-Party Claim Notice”) as promptly as reasonably possible after receiptor cease to defend against such claim, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice of the Third-Party Claim; provided, that failure if pursuant to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Person shall have been actually and materially prejudiced or as a result of such failure. Upon receipt settlement or cessation, (i) injunctive or other equitable relief would be imposed against the Indemnified Party, or (ii) such settlement or cessation would lead to liability or create any financial or other obligation on the part of the Third-Indemnified Party Claim Notice from for which the Indemnified PersonParty is not entitled to indemnification hereunder. The Indemnifying Party shall not be entitled to control, and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim to the extent that claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party (and the cost of such defense shall constitute an Loss for which the Indemnified Party is entitled to indemnification hereunder). If a firm decision is made to settle a Third Party Claim, which offer the Indemnifying Party is permitted to settle under this Section 9.3 and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, Party will give written notice to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior Party to executing any settlement agreement and that effect. If the Indemnified Person shall have the right Party fails to approve or reject the settlement and related expenses; provided, however, that upon rejection consent to such firm offer within 30 calendar days after its receipt of any settlement and related expensessuch notice, the Indemnified Person shall assume control of the defense of such Third-Party Claim and the liability of the Indemnifying Person with respect to such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall may continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to contest or defend such Third-third Party Claim and, in such event, the maximum liability of the Indemnifying Person shall indemnify Party as to such Third Party Claim will not exceed the Indemnified Person for all reasonable fees amount of such settlement offer, plus costs and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses paid or incurred by the Indemnified Person in connection with such Claim; (b) assumes Party through the defense end of such Third-Party Claim; and 30 day period.
(c) takes such other actions as Any judgment entered or settlement agreed upon in the manner provided herein shall be binding upon the Indemnifying Party, and shall conclusively be deemed to be an obligation with respect to which the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability Party is entitled to fulfill its obligations under this Article 10 in connection with such Third-Party Claimprompt indemnification hereunder.
Appears in 1 contract
Indemnification Procedure for Third Party Claims. In the event that, subsequent to the Closing, any person or entity entitled to indemnification under this Agreement (an “Indemnified Party”) receives notice of the assertion of any claim or of the commencement of any action or proceeding by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including, but not limited to any Governmental Authority) (a “Third Party Claim”) against such Indemnified Party, against which a party to this Agreement is required to provide indemnification under this Agreement (an “Indemnifying Party”), the Indemnified Party shall give written notice (a “Third Party Claim Notice”) regarding such claim to the Indemnifying Party within twenty (20) Business Days after learning of such claim, unless the notice relates to commencement of an action or proceeding, in which case such notice shall be given as soon as practicable, and at least fifteen (15) Business Days prior to any response required by applicable Law or tribunal rule. The Indemnifying Party shall have the right, upon written notice to the Indemnified Party (the “Defense Notice”) within fifteen (15) Business Days after receipt from the Indemnified Party of a Third Party Claim Notice, which notice by the Indemnifying Party shall specify the counsel it will appoint to defend such claim (“Defense Counsel”), to conduct at its expense the defense against such claim in its own name, or if necessary in the name of the Indemnified Party; provided, however, that the Indemnified Party shall have the right to approve the Defense Counsel, which approval shall not be unreasonably withheld, conditioned or delayed.
(a) In the event that any party the Indemnifying Party shall fail to give the Defense Notice within said 15-Business Day period, it shall be deemed to have elected not to conduct the defense of the subject claim, and in such event the Indemnified Party shall have the right to conduct the defense in good faith and to compromise and settle the claim in good faith with the consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed) and the “Indemnified Person”) desires to make a claim against any Indemnifying Party will be liable for all reasonable costs, expenses, settlement amounts or other party (the “Indemnifying Person”) Losses paid or incurred in connection therewith but only upon the terms and conditions of this Article IX; provided, however, that the Indemnified Party shall keep the Indemnifying Party informed of all material developments and events relating to such claim or proceeding.
(b) In the event that the Indemnifying Party does deliver a Defense Notice and thereby elects to conduct the defense of the subject claim, the Indemnifying Party shall be entitled to have the exclusive control over said defense settlement of the subject claim and the Indemnified Party will cooperate with and make available to the Indemnifying Party such assistance and materials as it may reasonably request, all at the expense of the Indemnifying Party, and the Indemnified Party shall have the right at its expense to participate in the defense assisted by counsel of its own choosing. (Any fees or costs incurred by the Indemnified Party whilst engaging in such participation shall not be included within the calculation of its Losses for purposes of its entitlement to indemnification under this Section 9.3). In such an event, the Indemnifying Party will not settle the subject claim without the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld, conditioned or delayed).
(c) Without the prior written consent of the Indemnified Party which may be withheld for any Losses reason or no reason, the Indemnifying Party will not enter into any settlement of any Third Party Claim or cease to defend against such claim after assuming the defense of such claim, if pursuant to or as a result of such settlement or cessation, (i) injunctive relief or specific performance would be imposed against the Indemnified Party, (ii) such settlement or cessation would lead to liability or create any financial or other obligation on the part of the Indemnified Party for which the Indemnified Person Party is not entitled to indemnification hereunder, or (iii) such settlement or cessation will not result in a full release of the Indemnified Party with respect to such claim.
(d) Notwithstanding Section 9.3(b), the Indemnifying Party shall not be entitled to control, but may seek indemnification hereunder in respect participate in, and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim (i) that seeks a claim temporary restraining order, a preliminary or demand made by any Person not a party to this Agreement permanent injunction or specific performance against the Indemnified Person Party, (ii) that involves criminal allegations against the Indemnified Party, (iii) that if unsuccessful, would set a “Third-precedent that would materially interfere with, or have a Material Adverse Effect on, the business or financial condition of the Indemnified Party, or (iv) that imposes liability on the part of the Indemnified Party Claim”)for which the Indemnified Party is not entitled to indemnification hereunder. In such an event, such Indemnified Person must notify the Indemnifying Person in writing, Party will still have all of its obligations hereunder provided that the Indemnified Party will not settle the subject claim without the prior written consent of the Third-Indemnifying Party, which consent will not be unreasonably withheld, conditioned or delayed.
(e) Any final judgment entered or settlement agreed upon in the manner provided herein shall conclusively be deemed to be an obligation with respect to which the Indemnified Party Claim is entitled to prompt indemnification hereunder.
(a “Third-f) A failure by either Party Claim Notice”) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice of the Third-Party Claim; provided, that failure to give a Third-Party Claim Notice on a timely basis shall timely, complete or accurate notice as provided in this Section 9.3 will not affect the indemnification provided rights or obligations of any Party hereunder except and only to the extent the Indemnifying Person shall have been actually that, as a result of such failure, any party entitled to receive such notice was deprived of its right to recover any payment under its applicable insurance coverage or was otherwise directly and materially prejudiced as a result of such failure. Upon receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the settlement and related expenses; provided, however, that upon rejection of any settlement and related expenses, the Indemnified Person shall assume control of the defense of such Third-Party Claim and the liability of the Indemnifying Person with respect to such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails failure to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such timely notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party Claim.
Appears in 1 contract
Sources: Merger Agreement (Ebix Inc)
Indemnification Procedure for Third Party Claims. (a) In If an Indemnitee receives written notice of the event that commencement of any action or proceeding, the assertion of any claim by a third party (or the “Indemnified Person”) desires to make a claim against imposition of any other party (the “Indemnifying Person”) in connection with any Losses penalty or assessment for which the Indemnified Person indemnity may seek indemnification hereunder in respect of a claim or demand made by any Person not a party be sought pursuant to this Agreement against the Indemnified Person Article 10 (a “"Third-Party Claim”"), and the Indemnitee intends to seek indemnity pursuant to this Article 10, then the Indemnitee shall promptly provide the Indemnitor with notice of such Indemnified Person must notify action, proceeding, claim, penalty or assessment; provided, however, that no delay on the Indemnifying Person in writing, part of the Third-Party Claim Indemnitor in notifying the Indemnitee shall relieve the Indemnitor from any liability or obligation under this Article 10 except to the extent that the Indemnitor is damaged by the delay (a “Third-Party Claim Notice”) as promptly as reasonably possible after receiptbut no such delay may extend the survival period set forth in Section 10.1 for the parties' representations and warranties). The Indemnitor shall have the right, but in no event later than fifteen (15) calendar by giving notice to the Indemnitee within 20 days after receipt, by such Indemnified Person receipt of notice from the Indemnitee of the a Third-Party Claim; provided, that failure at its expense, to give a Third-Party Claim Notice on a timely basis shall not affect defend against, negotiate, settle or otherwise deal with any claim with respect to which it is the indemnification provided hereunder except Indemnitor and to have the Indemnitee represented by counsel reasonably satisfactory to the extent Indemnitee, selected by the Indemnifying Person shall have been actually Indemnitor, provided that the Indemnitee may participate in any proceeding with counsel of its choice and materially prejudiced as a result of such failure. Upon receipt of at its expense; provided further that the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitledIndemnitee, at any time when it reasonably believes that (i) the Indemnifying Person’s election, Indemnitor does not have the financial resources to assume defend against the claim and fulfill its indemnification obligations hereunder; or participate in (ii) the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes Indemnitor is not conducting the defense of the Third-Party ClaimClaim actively and diligently, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the settlement and related expenses; provided, however, that upon rejection of any settlement and related expenses, the Indemnified Person shall assume control of the defense of such Third-Party Claim and the liability of the Indemnifying Person with respect to such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in may conduct the defense of the Third-Party ClaimClaim in good faith, including refraining from taking any position adverse to with counsel of its choice, and be fully indemnified therefor; and provided further, that the Indemnifying Person.
(c) If the Indemnifying Person fails to give notice of the assumption of the defense Indemnitor may not enter into a settlement of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt without the consent of the Third-Party Claim Notice from Indemnitee unless such settlement requires no restrictions of obligations upon the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is Indemnitee other than a Third-Party Claim monetary payment for which the Indemnifying Person Indemnitee is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense fully indemnified and with its own counsel in that the defense Indemnitee may not enter into any settlement of any Third-Party Claim without the consent of the Indemnitor (which consent may not be unreasonably withheld). If the Indemnitee is controlling the defense, the Indemnitor may participate in such defense of which and settlement through counsel chosen by it does not assume. Prior or consent to effectuating any settlement of such the Third-Party Claim, the Indemnified Person which consent shall furnish the Indemnifying Person not be unreasonably withheld. The parties will cooperate fully with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person each other in connection with such Claim; (b) assumes the defense defense, negotiation or settlement of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such any Third-Party Claim.
Appears in 1 contract
Indemnification Procedure for Third Party Claims. (a) In the event that any party (the “Indemnified Person”) desires claim or demand, or other circumstance or state of facts that could give rise to make a any claim against any other party (the “Indemnifying Person”) in connection with any Losses or demand, for which the Indemnified an Indemnitor may be liable to an Indemnitee under this Agreement, is asserted or sought to be collected by a Person may seek indemnification hereunder in respect of a claim or demand made by any Person Governmental Entity who is not a party to this Agreement against the Indemnified Person Party or an Affiliate thereof (a “Third-Party Claim”), such Indemnified Person must the Indemnitee shall notify the Indemnifying Person Indemnitor in writing, writing of the such Third-Party Claim (a “Third-Party Claim NoticeNotice of Claim”) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice of the Third-Party Claimpracticable; provided, however, that a failure or delay by an Indemnitee to give provide a Third-Party Notice of Claim Notice on a timely basis as promptly as practicable shall not affect the indemnification provided hereunder except to rights or obligations of such Indemnitee unless the extent the Indemnifying Person Indemnitor shall have been actually and materially prejudiced as a result of such failurefailure or delay. Upon receipt The Notice of Claim shall (i) state that the Indemnitee has paid or properly accrued Losses or anticipates that it will incur liability for Losses for which such Indemnitee is entitled to indemnification pursuant to this Agreement, and (ii) specify in reasonable detail, as applicable, each individual item of Loss included in the amount so stated, the date such item was paid or properly accrued, the basis for any anticipated Loss and the nature of the Third-Party Claim Notice from misrepresentation, breach of warranty, breach of covenant or claim to which each such item is related and the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense computation of the amount to which such Indemnitee claims to be entitled under this Agreement. The Indemnitee shall enclose with the Notice of Claim a copy of all papers served with respect to such Third-Party Claim, if any, and any other documents evidencing such Third-Party Claim. The Indemnitee will reasonably cooperate and assist the Indemnifying Person shall give Indemnitor in determining the Indemnified Person ten validity of any claim for indemnity by the Indemnitee and in otherwise resolving such matters. Such assistance and cooperation will include providing reasonable access to, and copies of, information, records and documents relating to such matters, furnishing employees to assist in the investigation, defense and resolution of such matters and providing legal and business assistance with respect to such matters, in each case without expense (10other than reimbursement of actual out-of-pocket expenses).
(b) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person The Indemnitor shall have the right right, but not the obligation, to approve or reject the settlement and related expenses; provided, however, that upon rejection of any settlement and related expenses, the Indemnified Person shall assume control of the defense or prosecution of such Third-Party Claim and any litigation resulting therefrom with counsel of its choice and at its sole cost and expense (a “Third-Party Defense”) by providing written notice of such assumption to the liability Indemnitee within 30 days following delivery of the Indemnifying Person with respect Notice of Claim; provided, that if the Indemnitor is the Seller, such Indemnitor shall not have the right to defend or direct any such Third-Party Claim shall be limited to the amount Defense that (x) is asserted directly by or the monetary equivalent on behalf of a Person that is a supplier or customer of the rejected settlement and related expenses.
Company, or (by) The Indemnified Person shall retain seeks an injunction or other equitable relief against the right to employ its own counsel and to discuss matters with Indemnitee. If the Indemnifying Person related to Indemnitor assumes the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of Defense in accordance with this Agreement, but (i) the Indemnified Person shall bear Indemnitee may retain separate co-counsel at its sole cost and shall be solely responsible for its own costs expense and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects participate in the defense of the Third-Party Claim, including refraining from taking any position adverse but the Indemnitor shall control the investigation, defense and settlement thereof; provided, that if in the reasonable opinion of counsel to the Indemnifying PersonIndemnitee, (A) there are legal defenses available to an Indemnitee that are different from or additional to those available to the Indemnitor, or (B) there exists a conflict of interest between the Indemnitor and the Indemnitee that cannot be waived, the Indemnitor shall be liable for the reasonable fees and expenses of counsel to the Indemnitee in each jurisdiction for which the Indemnitee determines counsel is required; (ii) the Indemnitee will not file any papers or consent to the entry of any judgment or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnitor; and (iii) the Indemnitor will not consent to the entry of any judgment or enter into any settlement with respect to the Third-Party Claim to the extent such judgment or settlement provides for non-monetary or equitable relief, performance obligations, or monetary relief in excess of the Cap without the prior written consent of the Indemnitee. The Parties will use their commercially reasonable efforts to minimize Losses from Third-Party Claims and will act in good faith in responding to, defending against, settling or otherwise dealing with such claims. The Parties will also cooperate in any such defense and give each other reasonable access to all information relevant thereto. Whether or not the Indemnitor has assumed the Third-Party Defense, any settlement entered into or any judgment that was consented to without the Indemnitor’s prior written consent shall not be determinative of the amount of Losses relating to such matter.
(c) If the Indemnifying Person fails to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period Indemnitor does not to exceed forty-five (45) days after receipt of assume the Third-Party Claim Notice from the Indemnified PersonDefense, the Indemnifying Person shall no longer Indemnitee will be entitled to assume (but shall continue the Third-Party Defense and seek indemnification for any and all Losses based upon, arising from or relating to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim Defense if the Indemnitee incurs a Loss with respect to the matter in question for which the Indemnifying Person Indemnitee is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to indemnification pursuant to Section 9.2 or Section 9.3, as applicable, at the expense of the Indemnitor, upon delivery of notice to such effect to the Indemnitor; provided, however, that the Indemnitor shall have the right to participate at its own expense and with its own counsel in the defense of any Third-Party Claim Defense at its sole cost and expense, but the Indemnitee shall control the investigation, defense of which it does not assume. Prior and settlement thereof.
(d) To the extent that Section 6.8(e) (with respect to effectuating Tax Proceedings) applies to any settlement of such Third-Party Claim, the Indemnified Person Section 6.8(e), and not this Section 9.4, shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party Claimgovern.
Appears in 1 contract
Indemnification Procedure for Third Party Claims. (a) In Promptly after receipt by an Indemnified Party of notice by a third party of a threatened or filed complaint or the event that threatened or actual commencement of any party (audit, investigation, action or proceeding with respect to which such Indemnified Party may be entitled to receive payment from the “Indemnified Person”) desires to make a claim against any other party (the “Indemnifying Person”) in connection with for any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim or demand made by any Person not a party to this Agreement against the Indemnified Person (a “Third-Party Claim”)Loss, such Indemnified Person must notify Party will provide written notification to Lessee, Sprint or Contributors, whoever is the appropriate indemnifying party under this Agreement (the "Indemnifying Person in writingParty"), within thirty (30) days of the Third-Party Claim (a “Third-Party Claim Notice”) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice Party's becoming aware of the Third-Party Claimthreatening or filing of such complaint or of the Indemnified Party's becoming aware of the threatened or actual commencement of such audit, investigation, action or proceeding; provided, that the failure to give a Third-so notify the Indemnifying Party Claim Notice on a timely basis shall not affect will relieve the indemnification provided hereunder except Indemnifying Party from liability under this Agreement with respect to such claim only to the extent that such failure to notify the Indemnifying Person shall Party results in (i) the forfeiture by the Indemnifying Party of rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) prejudice to the Indemnifying Party with respect to such claim. The Indemnifying Party will have been actually and materially prejudiced as a result of such failure. Upon receipt of the Third-Party Claim Notice from right, upon written notice delivered to the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s electionParty within thirty (30) days thereafter, to assume the defense of such complaint, audit, investigation, action or proceeding, including the employment of counsel and the payment of the fees and disbursements of such counsel reasonably acceptable to the Indemnified Party. In the event, however, that the Indemnifying Party declines or fails to assume the defense of the audit, investigation, action or proceeding on the terms provided above within such thirty (30) day period, then the Indemnified Party may employ counsel to represent or defend it in any such audit, investigation, action or proceeding and the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurred; provided, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel (in addition to local counsel) for all Indemnified Parties in any single audit, investigation, action or proceeding. In any audit, investigation, action or proceeding with respect to which indemnification is being sought under this Agreement, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, will have the right to participate in such matter and to retain its own counsel at such party's own expense. The Indemnifying Party or the Indemnified Party, as the case may be, will at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of any matter the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the settlement and related expenses; provided, however, that upon rejection of any settlement and related expenses, the Indemnified Person shall assume control of the defense of such Third-Party Claim and the liability of the Indemnifying Person with respect to such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expensesmatter.
(b) The No Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related Party may settle or compromise any claim or consent to the defense entry of any Third-Party Claim, judgment with respect to which indemnification is being sought under this Agreement without the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions prior written consent of the Indemnifying Person shall Party, other than with respect to Shared Ground Lease Payments the settlement and/or compromise of which will be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Persongoverned by Section 3.4.
(c) If In the Indemnifying Person fails event an Indemnified Party will claim a right to give payment pursuant to this Agreement not involving a third party claim covered by Section 9.1 or Section 9.2, such Indemnified Party will send written notice of such claim to the assumption appropriate Indemnifying Party. Such notice will specify in reasonable detail the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party will establish the merits and amount of such claim (by mutual agreement, arbitration, litigation or otherwise) and, within five (5) business days of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt final determination of the Third-Party Claim Notice from the Indemnified Personmerits and amount of such claim, the Indemnifying Person shall no longer be entitled Party will pay to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses Party immediately available funds in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated an amount equal to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions claim as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations determined under this Article 10 in connection with such Third-Party ClaimAgreement, if any.
Appears in 1 contract
Sources: Agreement to Contribute, Lease and Sublease (Sprint Corp)
Indemnification Procedure for Third Party Claims. In the event that, subsequent to the Closing, any person or entity entitled to indemnification under this Agreement (an “Indemnified Party”) receives notice of the assertion of any claim or of the commencement of any action or proceeding by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including, but not limited to any Governmental Authority) (a “Third Party Claim”) against such Indemnified Party, against which a party to this Agreement is required to provide indemnification under this Agreement (an “Indemnifying Party”), the Indemnified Party shall give written notice together with a statement of any available information (other than privileged information) regarding such claim to the Indemnifying Party within thirty (30) Business Days after learning of such claim. The Indemnifying Party shall have the right, upon written notice to the Indemnified Party (the “Defense Notice”) within fifteen days (15) after receipt from the Indemnified Party of notice of such claim, which notice by the Indemnifying Party shall specify the counsel it will appoint to defend such claim (“Defense Counsel”), to conduct at its expense the defense against such claim in its own name, or if necessary in the name of the Indemnified Party; provided, however, that the Indemnified Party shall have the right to approve the Defense Counsel, which approval shall not be unreasonably withheld or delayed (and further provided that the defense of any Tax Claims shall be governed by Section 3.8(f)).
(a) In the event that any party (the “Indemnifying Party shall fail to give the Defense Notice within said 15-day period, it shall be deemed to have elected not to conduct the defense of the subject claim, and in such event the Indemnified Person”) desires Party shall have the right to make a conduct the defense in good faith and to compromise and settle the claim against any in good faith without prior consent of the Indemnifying Party and the Indemnifying Party will be liable for all reasonable costs, expenses, settlement amounts or other party (the “Indemnifying Person”) Losses paid or incurred in connection therewith.
(b) In the event that the Indemnifying Party does deliver a Defense Notice and thereby elects to conduct the defense of the subject claim, the Indemnifying Party shall be entitled to have the control over said defense settlement of the subject claim and the Indemnified Party will cooperate with and make available to the Indemnifying Party such assistance and materials as it may reasonably request, all at the expense of the Indemnifying Party, and the Indemnified Party shall have the right at its expense to participate in the defense assisted by counsel of its own choosing. In such an event, the Indemnifying Party will not settle the subject claim without the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld. Notwithstanding the generality of the foregoing, the Indemnifying Party’s delivery of a Defense Notice shall constitute an acceptance of the obligation to indemnify the Indemnified Party with respect to all Losses, if any, resulting from the subject claim.
(c) Without the prior written consent of the Indemnified Party which may be withheld for any Losses reason or no reason, the Indemnifying Party will not enter into any settlement of any Third Party Claim or cease to defend against such claim, if pursuant to or as a result of such settlement or cessation, (i) injunctive relief or specific performance would be imposed against the Indemnified Party, or (ii) such settlement or cessation would lead to liability or create any financial or other obligation on the part of the Indemnified Party for which the Indemnified Person Party is not entitled to indemnification hereunder.
(d) Notwithstanding Section 9.3(b), the Indemnifying Party shall not be entitled to control, but may seek indemnification hereunder in respect participate in, and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim (i) that seeks a claim temporary restraining order, a preliminary or demand made by any Person not a party to this Agreement permanent injunction or specific performance against the Indemnified Person Party, (ii) that involves criminal allegations against the Indemnified Party, (iii) that if unsuccessful, would set a “Third-precedent that would materially interfere with, or have a material adverse effect on, the business or financial condition of the Indemnified Party, or (iv) that imposes liability on the part of the Indemnified Party Claim”)for which the Indemnified Party is not entitled to indemnification hereunder. In such an event, such Indemnified Person must notify the Indemnifying Person in writing, Party will still have all of its obligations hereunder provided that the Indemnified Party will not settle the subject claim without the prior written consent of the Third-Indemnifying Party, which consent will not be unreasonably withheld. If the Stockholders are the Indemnifying Party Claim (a “Third-with respect to any claim relating to Taxes, the Indemnifying Party Claim Notice”) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by will not enter into any settlement of such Indemnified Person of notice claim or cease to defend against such claim without the prior written consent of the Third-Indemnified Party Claim; providedif such settlement of the claim or cessation to defend such claim is likely to adversely affect the tax position of either any Company or the Buyer.
(e) Any final judgment entered or settlement agreed upon in the manner provided herein shall be binding upon the Indemnifying Party, that and shall conclusively be deemed to be an obligation with respect to which the Indemnified Party is entitled to prompt indemnification hereunder.
(f) A failure by an Indemnified Party to give a Third-Party Claim Notice on a timely basis shall timely, complete or accurate notice as provided in this Section 9.3 will not affect the indemnification provided rights or obligations of any party hereunder except and only to the extent the Indemnifying Person shall have been actually and materially prejudiced that, as a result of such failure. Upon receipt , any party entitled to receive such notice was deprived of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the its right to approve recover any payment under its applicable insurance coverage or reject the settlement was otherwise directly and related expenses; provided, however, that upon rejection of any settlement and related expenses, the Indemnified Person shall assume control of the defense materially damaged as a result of such Third-Party Claim and the liability of the Indemnifying Person with respect to such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails failure to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such timely notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party Claim.
Appears in 1 contract
Indemnification Procedure for Third Party Claims. (a) In Other than a claim involving the Tax Representations and Covenants, which procedure is set forth in and which shall be governed exclusively by Section 10.1, in the event that subsequent to the Closing, any party Person that is or may be entitled to indemnification under this Agreement (the an “Indemnified PersonParty”) desires to make a claim against receives notice of the assertion of any other party (claim, issuance of any order or the “Indemnifying Person”) in connection with commencement of any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim action or demand made proceeding by any Person who is not a party to this Agreement against the Indemnified Person or an Affiliate of a party, including, without limitation, any Governmental Authority (a “Third-Third Party Claim”), against such Indemnified Person must notify Party, against which a party to this Agreement is or may be required to provide indemnification under this Agreement (an “Indemnifying Party”), the Indemnified Party shall promptly give written notice thereof together with a statement of any available information regarding such claim to the Indemnifying Person in writing, of the Third-Party Claim (a “Third-Party Claim Notice”) as promptly as reasonably possible after receiptParty, but in no any event later than within fifteen (15) calendar days after receiptlearning of such claim (or within such shorter time as may be necessary to give the Indemnifying Party a reasonable opportunity to respond to and defend such claim), provided, however, the failure to give such notice shall relieve the Indemnifying Party of its obligation to indemnify with respect to a Third Party Claim only to the extent that the Indemnifying Party actually has been prejudiced by such the Indemnified Person Party’s failure to give notice as required. The Indemnifying Party shall have the right upon written notice to the Indemnified Party (the “Defense Notice”) within thirty (30) days after receipt from the Indemnified Party of notice of such claim, to conduct at its expense the Third-Party Claim; provided, defense against such claim. In the event that failure to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Person shall have been actually and materially prejudiced as a result of such failure. Upon receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall be entitled, at the Indemnifying Person’s election, does elect to assume or participate in the defense of any Third-Party Claim at the cost of Indemnifying Person. In any case in which the Indemnifying Person assumes conduct the defense of the Third-Party Claimsubject claim, the Indemnified Party will cooperate with and make available to the Indemnifying Person shall give Party such assistance and materials as may be reasonably requested by it, with any reasonable third party costs incurred in connection with such Indemnified Party’s cooperation being at the Indemnifying Party’s expense. The Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person Party shall have the right to approve or reject participate in the settlement and related expenses; provideddefense assisted by counsel of its own choosing, however, provided that upon rejection of any settlement and related expenses, the Indemnifying Party will not be liable to the Indemnified Person shall assume control of the defense of such Third-Party Claim and the liability of the Indemnifying Person with respect to such Third-Party Claim shall be limited to the amount for any legal or the monetary equivalent of the rejected settlement and related expenses.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed other expenses subsequently incurred by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses Party in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions participation in the defense thereof. Without the prior written consent of the Indemnified Party, the Indemnifying Person Party will not enter into any settlement of any Third Party Claim. The Indemnifying Party shall not be final entitled to control, and the Indemnified Person Party shall cooperate with be entitled to have sole control over, the defense or settlement of any claim to the extent that (i) claim seeks an order, injunction or other equitable relief against the Indemnified Party, (ii) the Indemnified Party determines in good faith that joint representation would be inappropriate, (iii) a court of competent jurisdiction rules that the Indemnifying Person Party has failed or is failing to prosecute or defend such matter diligently and in all respects in good faith, or (iv) the defense amount of the Third-Losses arising out of such Third Party Claim, including refraining from taking as determined by the Indemnifying Party in good faith, exceeds the total Escrow Funds in the Escrow account at any position adverse time. If an offer is made to finally settle a Third Party Claim, which offer the Indemnifying Party is permitted to settle under this Section 11.5 only upon the prior written consent of the Indemnified Party, and the sole relief provided to the Indemnifying Person.
(c) If third party pursuant to such offer is monetary damages that do not exceed the total Escrow Funds in the Escrow account at the time, and the Indemnifying Person fails Party desires to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not accept and agree to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Personsuch offer, the Indemnifying Person shall no longer be entitled Party will give prompt written notice to assume the Indemnified Party to that effect. If the Indemnified Party fails to consent to such firm offer within twenty (but shall 20) calendar days after its receipt of such notice, the Indemnified Party may continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to contest or defend such Third-Third Party Claim and, in such event, the maximum liability of the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party as to such Third Party Claim for which will not exceed the amount of the total Escrow Funds in the Escrow account at the time. Notwithstanding anything contained herein to the contrary, no Indemnified Party shall settle any Third Party Claim without the prior written consent of the Indemnifying Person is otherwise obligated Party (such consent not to provide indemnification hereunderbe unreasonably withheld or delayed). The Indemnifying Person shall be entitled With respect to participate at any Third Party Claim subject to indemnification under this Section 11.5, the Parties agree to cooperate in such a manner as to preserve in full (to the extent possible) the confidentiality of all confidential information of the Acquired Companies and Parent and all attorney-client and work-product privileges with respect to all information generated, produced or disclosed. In connection therewith, each party agrees that: (i) it will use its own expense commercially reasonable efforts, in respect of any Third Party Claim in which it has assumed or participated in the defense, to avoid production of confidential information of the Acquired Companies and Parent (consistent with its own applicable law and rules of procedure), and (ii) all communications between any Party hereto and their respective counsel responsible for or participating in the defense of any Third-Third Party Claim shall, to the defense of which it does not assume. Prior extent possible, be made so as to effectuating preserve any settlement of such Thirdapplicable attorney-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Thirdclient or work-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party Claimproduct privilege.
Appears in 1 contract
Sources: Merger Agreement (Paychex Inc)
Indemnification Procedure for Third Party Claims. (a) In the event that any Promptly following receipt by a party seeking indemnification (the “Indemnified PersonParty”) desires to make of notice by a claim against any other third party (including any Governmental Entity) of any complaint or the “Indemnifying Person”) in connection commencement of any audit, investigation, action or proceeding with respect to which such Indemnified Party may be entitled to receive payment under this Article IX for any Losses for which Purchaser Loss or any Seller Loss (as the Indemnified Person case may seek indemnification hereunder in respect of a claim or demand made by any Person not a party to this Agreement against the Indemnified Person be), other than Warranty Work (each, a “Third-Third Party Claim”), such Indemnified Person must Party shall notify the Purchaser or the Seller, as the case may be (the “Indemnifying Party”), provided, however, that the failure to so notify the Indemnifying Person in writing, of Party shall relieve the Third-Indemnifying Party from liability hereunder with respect to such Third Party Claim (a “Third-Party Claim Notice”) as promptly as reasonably possible after receiptonly if, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice of the Third-Party Claim; provided, that failure to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except and only to the extent that, such failure to so notify the Indemnifying Person Party results in the forfeiture by the Indemnifying Party of rights and defenses otherwise available to the Indemnifying Party with respect to such Third Party Claim. The Indemnifying Party shall have been actually and materially prejudiced as a result of such failure. Upon receipt of the Third-Party Claim Notice from right, upon written notice delivered to the Indemnified Person, Party within ten (10) days thereafter assuming full responsibility for any Purchaser Losses or Seller Losses (as the Indemnifying Person shall be entitled, at the Indemnifying Person’s electioncase may be) resulting from such Third Party Claim, to assume or participate in the defense of any Third-such Third Party Claim at Claim, including the cost employment of Indemnifying Personcounsel reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such counsel. In any case in which the event, however, that the Indemnifying Person assumes Party declines or fails to assume the defense of the Third-Third Party ClaimClaim on the terms provided above or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such ten (10)-day period, then such Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and the Indemnifying Person Party shall give pay the reasonable fees and disbursements of such counsel as incurred. In any Third Party Claim for which indemnification is being sought hereunder the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and Party or the Indemnified Person Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to approve participate in such matter and to retain its or reject the settlement and related expenses; provided, however, that upon rejection of any settlement and related expenses, his own counsel at such Party’s own expense. The Indemnifying Party or the Indemnified Person Party (as the case may be) shall assume control at all times use reasonable efforts to keep the Indemnifying Party or Indemnified Party (as the case may be) reasonably apprised of the status of the defense of such Third-Party Claim any matter the defense of which it is maintaining and the liability of the Indemnifying Person to cooperate in good faith with each other with respect to the defense of any such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expensesmatter.
(b) The No Indemnified Person shall retain Party may settle or compromise any Third Party Claim or consent to the right entry of any judgment with respect to employ its own counsel and to discuss matters with which indemnification is being sought hereunder without the prior written consent of the Indemnifying Person related Party, unless (i) the Indemnifying Party is not permitted to or fails to assume and maintain the defense of such Third Party Claim pursuant to Section 9.5(a), or (ii) such settlement, compromise or consent includes an unconditional release of the Indemnifying Party and its officers, managers, directors, trustees, employees and Affiliates from all liability arising out of such Third Party Claim. An Indemnifying Party may not, without the prior written consent of the Indemnified Party, settle or compromise any Third-Third Party Claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder unless such settlement, compromise or consent (w) includes an unconditional release of the Indemnified Party and its officers, managers, directors, trustees, employees and Affiliates from all liability arising out of such Third Party Claim, (x) does not contain any admission or statement suggesting any wrongdoing or liability on behalf of the defense Indemnified Party, (y) provides only for the payment of monetary damages, all of which has been assumed will be borne by the Indemnifying Person pursuant to Section 10.3(aParty, and (z) does not contain any equitable order, judgment or term that in any manner affects, restrains or interferes with the business of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions Party or any of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying PersonParty’s Affiliates.
(c) If Notwithstanding the foregoing, the Indemnifying Person fails to give notice of the assumption of Party may not assume the defense of any Third-a Third Party Claim within (i) which includes criminal charges, (ii) that does not solely seek and continue to solely seek monetary damages, (iii) if the Indemnified Party is a reasonable time period not to Purchaser Indemnified Party and the Purchaser reasonably believes potential Purchaser Losses related thereto would likely exceed forty-five (45) days after receipt the amount remaining of the Third-Party Claim Notice from Indemnity Escrow Amount, (iv) which would have a material and adverse effect on the Business or the Purchaser, or (v) if the Indemnified Person, Party has been advised by counsel that an actual conflict exists between the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify and the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Third Party Claim.
Appears in 1 contract
Sources: Asset Purchase Agreement (Smith Douglas Homes Corp.)
Indemnification Procedure for Third Party Claims. (a) In Except as otherwise provided herein, in the event that any party (the “Indemnified Person”) desires to make a claim against any other party (the “Indemnifying Person”) in connection with any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim or demand made by any Person not a party to this Agreement against the Indemnified Person (a “Third-Party Claim”), such Indemnified Person must notify the Indemnifying Person in writing, of the Third-Party Claim (initiation of any legal proceeding against an Indemnitee by a “Third-Party Claim Notice”) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice of the Third-Party Claim; provided, that failure to give a Third-Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Person shall have been actually and materially prejudiced as a result of such failure. Upon receipt of the Third-Party Claim Notice from the Indemnified Personthird party, the Indemnifying Person Indemnitor shall be entitledentitled to assume the defense thereof, at the Indemnifying Person’s election, to assume or participate in Indemnitor's sole expense. If the Indemnitor assumes the defense of any Third-Party Claim legal proceeding, it will not settle the legal proceeding without the prior written consent of the Indemnitee (which shall not be unreasonably withheld or delayed). The Indemnitee shall cooperate in all reasonable respects with the Indemnitor and its attorneys in the investigation, trial and defense of any legal proceeding and any appeal arising therefrom (including the filing in the Indemnitee's name of appropriate cross claims and counterclaims). The Indemnitee may, at its own cost, participate in any investigation, trial and defense of such legal proceeding controlled by the Indemnitor and any appeal arising therefrom. If after receipt of a written notice pursuant to Section 9.4 hereof, the Indemnitor does not undertake to defend any such legal proceeding, the Indemnitee may, but shall have no obligation to, contest or defend against any legal proceeding and the Indemnitor shall be bound by the result obtained with respect thereto by the Indemnitee (including, without limitation, the settlement thereof without the consent of the Indemnitor). If there are one or more legal defenses available to the Indemnitee that conflict with those available to the Indemnitor, the Indemnitee shall have the right, at the cost expense of Indemnifying Person. In any case in which the Indemnifying Person assumes Indemnitor, to assume the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the settlement and related expenseslegal proceeding; provided, however, that upon rejection of in any settlement and related expenses, event the Indemnified Person shall assume control Indemnitee may not settle such legal proceeding without the consent of the defense of such Third-Party Claim and the liability of the Indemnifying Person with respect to such Third-Party Claim Indemnitor, which consent shall not be limited to the amount unreasonably withheld or the monetary equivalent of the rejected settlement and related expensesdelayed. As used herein, a "legal proceeding" includes any judicial, administrative or arbitral action, suit, proceeding (public or private), claim or governmental proceeding.
(b) The Indemnified Person shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party Claim.
Appears in 1 contract
Indemnification Procedure for Third Party Claims. In the event that any person or entity entitled to indemnification under this Agreement (an “Indemnified Party”) receives notice of the assertion of any claim or of the commencement of any action or proceeding by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including, but not limited to any Governmental Authority) (a “Third Party Claim”) against such Indemnified Party, against which a party to this Agreement is required to provide indemnification under this Agreement (an “Indemnifying Party”), the Indemnified Party shall promptly give written notice together with a statement regarding such claim to the Indemnifying Party in good faith, on a non-binding basis; provided that failure to provide such notice promptly shall not affect the rights of such Indemnified Party, except to the extent set forth in Section 10.4(f). Subject to Section 10.4(d) below, the Indemnifying Party shall have the right, upon written notice to the Indemnified Party (the “Defense Notice”) within thirty (30) days after receipt from the Indemnified Party of notice of such claim, which notice by the Indemnifying Party shall acknowledge its obligation to indemnify the Indemnified Party against any Losses that may result from such Third Party Claim (without regard to the amount thereof or the limitations set forth herein) and specify the counsel it will appoint to defend such claim (“Defense Counsel”), to conduct at its expense the defense against such claim in its own name; provided, however, that the Indemnified Party shall have the right to approve the Defense Counsel, which approval shall not be unreasonably withheld or delayed.
(a) In the event that any party the Indemnifying Party shall fail to give the Defense Notice within said thirty (30) day period, it shall be deemed to have elected not to conduct the “defense of the subject claim, and in such event the Indemnified Person”) desires Party shall have the right to make a conduct the defense in good faith and to compromise and settle the claim against any in good faith without prior consent of the Indemnifying Party and the Indemnifying Party will be liable for all reasonable costs, expenses, settlement amounts or other party (the “Indemnifying Person”) Losses paid or incurred in connection with any Losses for which therewith.
(b) Subject to Section 10.4(d) below, in the event that the Indemnifying Party does deliver a Defense Notice and thereby elects to conduct the defense of the subject claim, the Indemnifying Party shall be entitled to have the exclusive control over said defense of the subject claim and the Indemnified Person Party will cooperate with and make available to the Indemnifying Party such assistance and materials as it may seek indemnification hereunder in respect reasonably request, all at the expense of a claim or demand made by any Person not a party to this Agreement against the Indemnifying Party, and the Indemnified Person (a “Third-Party Claim”)shall have the right at its expense to participate in the defense assisted by counsel of its own choosing. Notwithstanding the foregoing, such Indemnified Person must notify the Indemnifying Person in writing, of the Third-Party Claim (a “Third-Party Claim Notice”) as promptly as reasonably possible after receipt, but in no event later than fifteen (15) calendar days after receipt, by such Indemnified Person of notice may an Indemnifying Party settle the subject claim without the prior written consent of the Third-Indemnified Party, which consent will not be unreasonably withheld.
(c) Without the prior written consent of the Indemnified Party Claim; providedwhich may be withheld for any reason or no reason, that failure to give a Third-the Indemnifying Party will not enter into any settlement of any Third Party Claim Notice on a timely basis shall not affect the indemnification provided hereunder except or cease to the extent the Indemnifying Person shall have been actually and materially prejudiced defend against such claim, if pursuant to or as a result of such failure. Upon receipt settlement or cessation, (i) injunctive relief or specific performance would be imposed against the Indemnified Party, or (ii) such settlement or cessation would lead to liability or create any financial or other obligation on the part of the Third-Indemnified Party Claim Notice from for which the Indemnified PersonParty is not entitled to indemnification hereunder.
(d) Notwithstanding Section 10.4(b), the Indemnifying Person Party shall not be entitled to control, and the Indemnified Party shall be entitled, at the Indemnifying PersonParty’s electionexpenses, to assume have sole control over, the defense or participate settlement of any claim (i) that seeks a temporary restraining order, a preliminary or permanent injunction or specific performance against the Indemnified Party, (ii) that involves criminal allegations, investigations or proceedings against the Indemnified Party, (iii) that if unsuccessful, would set a precedent that would materially interfere with, or have a material adverse effect on, the business or financial condition of the Indemnified Party, (iv) that is related to any Tax matter, (v) that relates to the exercise by any Shareholder of appraisal or dissenters rights, (vi) that seeks to impose liability on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification, in whole or in part, hereunder, (vii) that could reasonably be expected to result in suspension of debarment of the Purchaser or the Company by a Governmental Authority, (viii) that could reasonably be expected to exceed the unreserved or unclaimed amount remaining in the General Escrow Account, (ix) for which any insurer requires that such insurer control the matter as a condition to eligibility to recover insurance proceeds on account of such claim, (x) that involves a customer of the Company, (xi) that is made by a Governmental Authority, or (xii) that is not being reasonably, diligently and in good faith defended by the Indemnifying Party or (xiii) for which a conflict of interest exists which would prohibit a single legal counsel from representing both the Indemnified Party and the Indemnifying Party. The party that controls the defense, compromise or settlement of a Third Party Claim shall keep the other party reasonably informed of material developments and events relating to such claim. The party that is not conducting the defense shall provide the party conducting the defense and its counsel with reasonable access during normal business hours to such party’s records and personnel relating to any Third Party Claim and shall otherwise reasonably cooperate with the party conducting the defense in the defense of any Third-Party Claim at or settlement thereof.
(e) Any final judgment entered or settlement agreed upon in the cost of Indemnifying Person. In any case in which manner provided herein shall be binding upon the Indemnifying Person assumes the defense of the Third-Party ClaimParty, the Indemnifying Person and shall give the Indemnified Person ten (10) calendar days’ notice prior conclusively be deemed to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the settlement and related expenses; provided, however, that upon rejection of any settlement and related expenses, the Indemnified Person shall assume control of the defense of such Third-Party Claim and the liability of the Indemnifying Person be an obligation with respect to such Third-which the Indemnified Party Claim shall be limited is entitled to the amount or the monetary equivalent of the rejected settlement and related expensesprompt indemnification hereunder.
(bf) The A failure by an Indemnified Person shall retain Party to give timely, complete or accurate notice as provided in this Section 10.4 will not affect the rights or obligations of any party hereunder except and only to the extent that, as a result of such failure, any party entitled to receive such notice was deprived of its right to employ recover any payment under its own counsel applicable insurance coverage or was otherwise directly and to discuss matters with the Indemnifying Person related to the defense materially damaged as a result of any Third-Party Claim, the defense of which has been assumed by the Indemnifying Person pursuant to Section 10.3(a) of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails failure to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such timely notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party Claim.
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Indemnification Procedure for Third Party Claims. (a) In the event that Promptly after receipt by an Indemnified Party of notice from any third party (the “Indemnified Person”) desires to make a claim against any other party (the “Indemnifying Person”) in connection with any Losses for which the Indemnified Person may seek indemnification hereunder in respect of a claim or demand made by any Person not a party in respect of which indemnity may be sought under Section 11.2 or 11.3 which is asserted against or sought to this Agreement against be collected from the Indemnified Person Party, including the commencement of any Proceeding against it (a “Third-Third Party Claim”), the Indemnified Party shall, if a claim is to be made against an Indemnifying Party under such Indemnified Person must Section 11.2 or 11.3, as applicable, give notice to the Indemnifying Party of the Third Party Claim, but the failure to notify the Indemnifying Person in writing, Party will not relieve the Indemnifying Party of any Liability that it may have to any Indemnified Party except to the Third-extent (and only to the extent) the Indemnifying Party is prejudiced thereby.
(b) If any Third Party Claim referred to in Section 11.4(a) is brought against an Indemnified Party and it gives notice to the Indemnifying Party of such claim, the Indemnifying Party will be entitled to participate in any Proceeding underlying the claim and, to the extent that it wishes (unless the Indemnifying Party is also a “Third-party to such Proceeding and the Indemnified Party Claim Notice”) as promptly as reasonably possible after receiptdetermines in good faith that joint representation would be inappropriate, but in no which event later than fifteen (15) calendar days after receipt, by such Indemnified Person Party shall have the right to retain, at the Indemnifying Party’s expense, one separate counsel, reasonably satisfactory to the Indemnifying Party, to defend such claim on behalf of such Indemnified Party), assume the defense of such claim with counsel reasonably satisfactory to the Indemnified Party and, after notice from the Indemnifying Party to the Indemnified Party of its election to assume the defense of such Proceeding and an acknowledgement by the Indemnifying Party that it would have an indemnity obligation for any Damages resulting from such Third-Party Claim, except in the circumstances described in the parenthetical above, the Indemnifying Party will not, as long as it diligently conducts such defense, be liable to the Indemnified Party under this Section 11.4 for any fees of other counsel or any other expenses with respect to the defense of such claim, in each case subsequently incurred by the Indemnified Party in connection with the defense of such claim, other than reasonable costs of investigation. If the Indemnifying Party assumes the defense of the Third Party Claim, (i) no compromise or settlement of such claim may be effected by the Indemnifying Party without the Indemnified Party’s written consent unless (A) there is no finding or admission of any violation of Law or Order or any violation of the rights of any Person, (B) such settlement or compromise releases the Indemnified Party in connection with such Third Party Claim, (C) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party and there is no adverse effect or limitation on the Indemnified Party with respect to Taxes or Tax accounting methods or practices and (D) such settlement or compromise does not require any payment or other action by, or limitation on, the Indemnified Party; provided(ii) the Indemnified Party will have no Liability with respect to any compromise or settlement of such claim effected without its written consent and (iii) the Indemnified Party shall have the right (but not the duty) to participate in such defense and to employ counsel, that failure in each case, at its own expense. Subject to give a Third-Section 11.4(c), if notice is given to an Indemnifying Party of any Third Party Claim Notice on a timely basis and the Indemnifying Party does not, within twenty (20) 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 Proceeding or any compromise or settlement effected by the Indemnified Party (provided that such determination shall not affect the indemnification provided hereunder except Indemnifying Party’s rights to the extent dispute whether the Indemnifying Person shall have been actually and materially prejudiced Party is obligated to indemnify the Indemnified Party with respect to such determination in accordance with this Agreement).
(c) Notwithstanding the foregoing, if an Indemnified Party determines in good faith that there is a reasonable probability that a Proceeding may adversely affect it or its Affiliates other than as a result of such failure. Upon receipt of the Third-Party Claim Notice from monetary damages for which it would be entitled to indemnification under this Agreement, the Indemnified PersonParty may, by notice to the Indemnifying Person shall be entitledParty, at assume the exclusive right to defend, compromise, or settle such Proceeding, but the Indemnifying Person’s election, to assume Party will not be bound by any determination of a Proceeding so defended or participate any compromise or settlement effected without its consent (which may not be unreasonably withheld).
(d) The Parties shall cooperate in the defense of any Third-Party Claim at 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 with the cost provisions of Indemnifying Person. In any case in which the Indemnifying Person assumes the defense of the Third-Party Claim, the Indemnifying Person shall give the Indemnified Person ten (10) calendar days’ notice prior to executing any settlement agreement and the Indemnified Person shall have the right to approve or reject the settlement and related expenses; provided, however, that upon rejection of any settlement and related expenses, the Indemnified Person shall assume control of the defense of such Third-Party Claim and the liability of the Indemnifying Person with respect to such Third-Party Claim shall be limited to the amount or the monetary equivalent of the rejected settlement and related expensesthis Article 11.
(be) The Indemnified Person Any indemnification claim relating to Tax matters involving third parties shall retain the right to employ its own counsel and to discuss matters with the Indemnifying Person related to the defense of any Third-Party Claim, the defense of which has been assumed be governed by the Indemnifying Person pursuant to Section 10.3(a) 12.2 of this Agreement, but the Indemnified Person shall bear and shall be solely responsible for its own costs and expenses in connection with such participation; provided, however, that, subject to Section 10.3(a) above, all decisions of the Indemnifying Person shall be final and the Indemnified Person shall cooperate with the Indemnifying Person in all respects in the defense of the Third-Party Claim, including refraining from taking any position adverse to the Indemnifying Person.
(c) If the Indemnifying Person fails to give notice of the assumption of the defense of any Third-Party Claim within a reasonable time period not to exceed forty-five (45) days after receipt of the Third-Party Claim Notice from the Indemnified Person, the Indemnifying Person shall no longer be entitled to assume (but shall continue to be entitled to participate in) such defense. The Indemnified Person may, at its option, continue to defend such Third-Party Claim and, in such event, the Indemnifying Person shall indemnify the Indemnified Person for all reasonable fees and expenses in connection therewith (provided it is a Third-Party Claim for which the Indemnifying Person is otherwise obligated to provide indemnification hereunder). The Indemnifying Person shall be entitled to participate at its own expense and with its own counsel in the defense of any Third-Party Claim the defense of which it does not assume. Prior to effectuating any settlement of such Third-Party Claim, the Indemnified Person shall furnish the Indemnifying Person with written notice of any proposed settlement in sufficient time to allow the Indemnifying Person to act thereon. Within fifteen (15) days after the giving of such notice, the Indemnified Person shall be permitted to effect such settlement unless the Indemnifying Person (a) reimburses the Indemnified Person in accordance with the terms of this Article 10 for all reasonable fees and expenses incurred by the Indemnified Person in connection with such Claim; (b) assumes the defense of such Third-Party Claim; and (c) takes such other actions as the Indemnified Person may reasonably request as assurance of the Indemnifying Person’s ability to fulfill its obligations under this Article 10 in connection with such Third-Party Claim.
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