Indemnification Procedure for Third Party Claims. (a) The Indemnifying Party may, by written notice given to the Indemnified Party not later than 30 days after receipt of the notice described in Section 11.6, assume control of the defence, compromise or settlement of the Third Party Claim so long as: (i) the Indemnified Party has at all times the right to fully participate in the defence at its own cost and expense (except the Indemnifying Party must reimburse the Indemnified Party for all Losses incurred by the Indemnified Party in connection with the investigation and defence of the Third Party Claim prior to the date the Indemnifying Party validly exercised its right to assume the investigation and defence of the Third Party Claim); (ii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief against the Indemnified Party; (iii) the Third Party Claim is not made or asserted by a supplier or customer of Seller; (iv) the Indemnified Party determines in good faith that joint representation would not create a conflict of interest or be inappropriate where the Indemnifying Party is also a party to the Third Party Claim; and (v) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the judgment of the Indemnified Party likely to have an adverse effect on the Indemnified Party's Tax liability or its continuing business interests. (b) If the Indemnifying Party assumes the defence of a Third Party Claim, the Indemnifying Party must: (i) retain counsel satisfactory to the Indemnified Party, acting reasonably; (ii) actively and diligently proceed with the defence, compromise or settlement of the Third Party Claim at its sole cost and expense; (iii) pay or reimburse the Indemnified Party for any Taxes payable to an applicable Governmental Authority under applicable Law notwithstanding that the Third Party Claim is in dispute; (iv) keep the Indemnified Party fully advised with respect to the status of the Third Party Claim (including providing copies of all relevant documents promptly as they become available and giving access to all records and files relating to the defense of the Third Party Claim) and must arrange for its counsel to inform the Indemnified Party on a regular basis of the status of the Third Party Claim; and (v) not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim unless consented to in writing by the Indemnified Party (which consent may not be unreasonably or arbitrarily withheld or delayed). (c) Provided that all the conditions specified in Section 11.8(a) are satisfied and the Indemnifying Party is not in breach of any of its other obligations under this Section 11.8, the Indemnified Party shall, at the expense of the Indemnifying Party, cooperate with the Indemnifying Party and use its reasonable efforts to make available to the Indemnifying Party all relevant information in its possession or under its control (provided that it does not cause either of them to breach any confidentiality obligations) and shall take such other steps as are, in the reasonable opinion of counsel for the Indemnifying Party, necessary to enable the Indemnifying Party to conduct such defence so long as: (i) no admission of fault may be made by or on behalf of Buyers or any Buyer's Indemnified Party without the prior written consent of Buyer; (ii) no admission of fault may be made by or on behalf of Seller or any Seller's Indemnified Party without the prior written consent of such Person; (iii) a Representative of the Indemnified Party is not obligated to take any measures which, in the reasonable opinion of its legal counsel, could be prejudicial or unfavourable to the Indemnified Party; and (iv) the Indemnified Party receives, as part of any compromise or settlement, a legally binding and enforceable unconditional release, which is in form and substance satisfactory to the Indemnified Party, acting reasonably, from any and all obligations or Liabilities it may have with respect to the Third Party Claim. (d) If the Indemnifying Party does not assume the defence of a Third Party Claim because: (i) it is not entitled to under Section 11.8(a); (ii) it has not elected to assume the defence of a Third Party Claim or fails to give notice to the Indemnified Party as specified in Section 11.8(a); or (iii) it is not in compliance, in the opinion of the Indemnified Party acting reasonably, with any of the conditions listed in Section 11.8(b), the Indemnified Party has the right to assume the defence, compromise or settlement of the Third Party Claim and retain counsel in its sole discretion at the Indemnifying Party's sole cost and expense. (e) Any settlement or other final determination of the Third Party Claim pursuant to Section 11.8(d) will be binding upon the Indemnifying Party. The Indemnifying Party shall, at the sole cost and expense of the Indemnifying Party, cooperate fully with the Indemnified Party and use its reasonable efforts to make available to the Indemnified Party all relevant information in its possession or under its control and take such other steps as are, in the reasonable opinion of counsel for the Indemnified Party, necessary to enable the Indemnified Party to conduct the defence. The Indemnifying Party shall reimburse the Indemnified Party promptly and periodically for Losses incurred defending against the Third Party Claim, and shall remain responsible for any Loss the Indemnified Party may suffer resulting from, arising out of, or relating to, the Third Party Claim to the fullest extent provided in this Article 11.
Appears in 1 contract
Indemnification Procedure for Third Party Claims. Promptly after receipt by a party entitled to indemnification hereunder (athe “Indemnified Party”) 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 which a claim for indemnification is to be made pursuant to Section 6.01 or 6.02 herein, the Indemnified Party shall give written notice to the other party (the “Indemnifying Party”) of such Third Party Claim. The Indemnifying Party may, by written notice given shall be entitled to participate in and to assume the Indemnified Party not later than 30 days after receipt defense of the notice described in Section 11.6, assume control of the defence, compromise or settlement of the such Third Party Claim so long as:
(i) the Indemnified Party has at all times the right to fully participate in the defence at its own cost and expense (except the Indemnifying Party must reimburse the Indemnified Party for all Losses incurred by the Indemnified Party in connection with the investigation and defence of the Third Party Claim prior to the date the Indemnifying Party validly exercised its right to assume the investigation and defence of the Third Party Claim);
(ii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief against the Indemnified Party;
(iii) the Third Party Claim is not made or asserted by a supplier or customer of Seller;
(iv) the Indemnified Party determines in good faith that joint representation would not create a conflict of interest or be inappropriate where the Indemnifying Party is also a party to the Third Party Claim; and
(v) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the judgment of the Indemnified Party likely to have an adverse effect on the Indemnified Party's Tax liability or its continuing business interests.
(b) If the Indemnifying Party assumes the defence of a Third Party Claim, the Indemnifying Party must:
(i) retain counsel reasonably satisfactory to the Indemnified Party, acting reasonably;
(ii) actively 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 proceed with pursue such defense, the defence, compromise or settlement of the Third Indemnifying Party Claim at its sole cost and expense;
(iii) pay or reimburse the shall not be liable to such Indemnified Party for any Taxes payable 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 an applicable Governmental Authority under applicable Law notwithstanding that control its defense, including the selection of separate counsel (at the cost and expense of the Indemnifying Party), of any Third Party Claim is if such claim: (i) may result in dispute;
injunctions or other equitable remedies in respect of the Indemnified 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 significant adverse impact on the business or the financial condition of the Indemnified Party (including a Material Adverse Effect on the tax liabilities, earnings or ongoing business relationships of the Indemnified Party) even if the Indemnifying Party pays all indemnification amounts in full or (iv) keep the anticipated defendants in any such situation, proceeding or action include both the Indemnified Party fully advised with respect to and the status of the Third Party Claim (including providing copies of all relevant documents promptly as they become available Indemnifying Party, and giving access to all records and files relating to the defense of the Third Party Claim) and must arrange for its counsel to inform the Indemnified Party on a regular basis of the status of the Third Party Claim; and
(v) not consent 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 entry of any judgment or Indemnifying Party. No Indemnifying Party will enter into any settlement with respect to the such Third Party Claim unless consented to in writing by the Indemnified Party (which consent may not be unreasonably or arbitrarily withheld or delayed).
(c) Provided that all the conditions specified in Section 11.8(a) are satisfied and the Indemnifying Party is not in breach of any of its other obligations under this Section 11.8, the Indemnified Party shall, at the expense of the Indemnifying Party, cooperate with the Indemnifying Party and use its reasonable efforts to make available to the Indemnifying Party all relevant information in its possession or under its control (provided that it does not cause either of them to breach any confidentiality obligations) and shall take such other steps as are, in the reasonable opinion of counsel for the Indemnifying Party, necessary to enable the Indemnifying Party to conduct such defence so long as:
(i) no admission of fault may be made by or on behalf of Buyers or any Buyer's Indemnified Party without the prior written consent of Buyer;
(ii) no admission of fault may be made by or on behalf of Seller or any Seller's the Indemnified Party without unless such settlement (a) requires solely the prior written consent payment of such Person;
money damages by the Indemnifying Party and (iiib) a Representative includes as an unconditional term thereof the release by the claimant or the plaintiff of the Indemnified Party is not obligated to take any measures which, in and the reasonable opinion of its legal counsel, could be prejudicial or unfavourable to the Indemnified Party; and
(iv) persons for whom the Indemnified Party receives, as part is acting or who are acting on behalf of any compromise or settlement, a legally binding and enforceable unconditional release, which is in form and substance satisfactory to the Indemnified Party, acting reasonably, Party from any and all obligations or Liabilities it may have with liability in respect of the proceeding giving rise to the Third Party Claim.
(d) If the Indemnifying Party does not assume the defence of a Third Party Claim because: (i) it is not entitled to under Section 11.8(a); (ii) it has not elected to assume the defence of a Third Party Claim or fails to give notice to the Indemnified Party as specified in Section 11.8(a); or (iii) it is not in compliance, in the opinion of the Indemnified Party acting reasonably, with any of the conditions listed in Section 11.8(b), the Indemnified Party has the right to assume the defence, compromise or settlement of the Third Party Claim and retain counsel in its sole discretion at the Indemnifying Party's sole cost and expense.
(e) Any settlement or other final determination of the Third Party Claim pursuant to Section 11.8(d) will be binding upon the Indemnifying Party. The Indemnifying Party shall, at the sole cost and expense of the Indemnifying Party, cooperate fully with the Indemnified Party and use its reasonable efforts to make available to the Indemnified Party all relevant information in its possession or under its control and take such other steps as are, in the reasonable opinion of counsel for the Indemnified Party, necessary to enable the Indemnified Party to conduct the defence. The Indemnifying Party shall reimburse the Indemnified Party promptly and periodically for Losses incurred defending against the Third Party Claim, and shall remain responsible for any Loss the Indemnified Party may suffer resulting from, arising out of, or relating to, the Third Party Claim to the fullest extent provided in this Article 11.
Appears in 1 contract
Indemnification Procedure for Third Party Claims. (a) The Indemnifying Party may, by If any indemnified party receives written notice given of the commencement of any action or proceeding or the assertion of any claim by a third party or the imposition of any penalty or assessment of or which indemnity may be sought under this Article X (a “Third Party Claim”) and such indemnified party intends to seek indemnity pursuant to this Article X, such indemnified party shall promptly provide the indemnifying party with notice of such Third Party Claim (provided that any delay in providing such notice shall not affect the indemnification obligations of the indemnifying party hereunder except to the Indemnified Party not later than 30 days after receipt extent the indemnifying party demonstrates that such delay prejudiced such indemnifying party’s ability to successfully defend the matter giving rise to the claim). The indemnifying party shall, upon acknowledgment of its obligation to indemnify the notice described indemnified party, be entitled to participate in Section 11.6or, at its option, assume control of the defence, compromise defense or settlement of such Third Party Claim. The defense or settlement shall be conducted through counsel selected by the indemnifying party in connection therewith. The indemnifying party shall not settle any Third Party Claim so long as:
(i) without the Indemnified Party has at all times the right indemnified party’s prior written consent, which consent shall not be unreasonably conditioned, delayed or withheld; provided that if such a settlement is solely for monetary relief to fully participate be paid in the defence at its own cost and expense (except the Indemnifying Party must reimburse the Indemnified Party for all Losses incurred full by the Indemnified Party in indemnifying party, no consent of any indemnified party shall be required. In connection with the investigation and defence of the Third Party Claim prior to the date the Indemnifying Party validly exercised its right to assume the investigation and defence of the Third Party Claim);
(ii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief against the Indemnified Party;
(iii) the Third Party Claim is not made or asserted by a supplier or customer of Seller;
(iv) the Indemnified Party determines in good faith that joint representation would not create a conflict of interest or be inappropriate where the Indemnifying Party is also a party to the Third Party Claim; and
(v) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the judgment of the Indemnified Party likely to have an adverse effect on the Indemnified Party's Tax liability or its continuing business interests.
(b) If the Indemnifying Party assumes the defence of a any Third Party Claim, the Indemnifying Party must:
(i) retain counsel satisfactory to the Indemnified Party, acting reasonably;
(ii) actively and diligently proceed with the defence, compromise or settlement of the Third Party Claim at its sole cost and expense;
(iii) pay or reimburse the Indemnified Party for any Taxes payable to an applicable Governmental Authority under applicable Law notwithstanding that the Third Party Claim is in dispute;
(iv) keep the Indemnified Party fully advised with respect to the status of the Third Party Claim (including providing copies of all relevant documents promptly as they become available and giving access to all records and files relating to the defense of the Third Party Claim) and must arrange for its counsel to inform the Indemnified Party on a regular basis of the status of the Third Party Claim; and
(v) not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim unless consented to in writing by the Indemnified Party (which consent may not be unreasonably or arbitrarily withheld or delayed).
(c) Provided that all the conditions specified in Section 11.8(a) are satisfied and the Indemnifying Party is not in breach of any of its other obligations under this Section 11.8, the Indemnified Party shall, at the expense of the Indemnifying Party, cooperate with the Indemnifying Party and Parties shall use its their commercially reasonable efforts to make available to coordinate with any applicable insurance carriers and the Indemnifying Party all relevant information in its possession or under its control (provided that it does not cause either of them to breach any confidentiality obligations) and shall take such other steps as are, in the reasonable opinion of counsel for the Indemnifying Party, necessary to enable the Indemnifying Party to conduct such defence so long as:
(i) no admission of fault may be made by or on behalf of Buyers or any Buyer's Indemnified Party without the prior written consent of Buyer;
(ii) no admission of fault may be made by or on behalf of Seller or any Seller's Indemnified Party without the prior written consent of such Person;
(iii) a Representative of the Indemnified Party is not obligated to take any measures which, in the reasonable opinion of its legal counsel, could be prejudicial or unfavourable to the Indemnified Party; and
(iv) the Indemnified Party receives, as part terms of any compromise or settlement, a legally binding and enforceable unconditional release, which is in form and substance satisfactory to the Indemnified Party, acting reasonably, from any and all obligations or Liabilities it may have with respect to the Third Party Claimapplicable insurance policies.
(d) If the Indemnifying Party does not assume the defence of a Third Party Claim because: (i) it is not entitled to under Section 11.8(a); (ii) it has not elected to assume the defence of a Third Party Claim or fails to give notice to the Indemnified Party as specified in Section 11.8(a); or (iii) it is not in compliance, in the opinion of the Indemnified Party acting reasonably, with any of the conditions listed in Section 11.8(b), the Indemnified Party has the right to assume the defence, compromise or settlement of the Third Party Claim and retain counsel in its sole discretion at the Indemnifying Party's sole cost and expense.
(e) Any settlement or other final determination of the Third Party Claim pursuant to Section 11.8(d) will be binding upon the Indemnifying Party. The Indemnifying Party shall, at the sole cost and expense of the Indemnifying Party, cooperate fully with the Indemnified Party and use its reasonable efforts to make available to the Indemnified Party all relevant information in its possession or under its control and take such other steps as are, in the reasonable opinion of counsel for the Indemnified Party, necessary to enable the Indemnified Party to conduct the defence. The Indemnifying Party shall reimburse the Indemnified Party promptly and periodically for Losses incurred defending against the Third Party Claim, and shall remain responsible for any Loss the Indemnified Party may suffer resulting from, arising out of, or relating to, the Third Party Claim to the fullest extent provided in this Article 11.
Appears in 1 contract
Sources: Purchase Agreement (Rare Hospitality International Inc)
Indemnification Procedure for Third Party Claims. (a) In the event that, subsequent to the Closing, an Indemnified Party receives notice of the assertion of a Third Party Claim against such Indemnified Party, the Indemnified Party shall promptly give written notice thereof together with a statement of any available information regarding such claim to the Indemnifying Party; provided that no delay in or failure to give such notice pursuant to this Section 14.5(a) will adversely affect any of the other rights or remedies that such Indemnified Party has under this Agreement, or alter or relieve the Indemnifying Party’s obligation to indemnify such Indemnified Party, except to the extent the Indemnifying Party is materially prejudiced thereby. The Indemnifying Party may, by shall have the right upon written notice given to the Indemnified Party, within thirty (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 with counsel selected by the Indemnifying Party and not reasonably objected to by the Indemnified Party. In the event that the Indemnifying Party elects to conduct the defense of the subject claim, the Indemnified Party will use Reasonable Efforts to 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. The Indemnifying Party shall hold in confidence all such information provided by the Indemnified Party under this Section 14.5(a) on the terms and subject to the conditions contained in the Confidentiality Agreement or Section 9.4, as applicable. Notwithstanding the foregoing, the Indemnifying Party shall not have the right of access to information of the Indemnified Party relating to any information the disclosure of which would jeopardize any legal privilege or work-product privilege available to the Indemnified Party or any of its Affiliates relating to such information. Notwithstanding the foregoing, the Indemnifying Party will not later have the right to assume the defense of any Third Party Claim or will cease to defend against such claim, if (i) injunctive or other equitable relief or relief for other than 30 days money damages that the Indemnified Party reasonable determines, after receipt of conferring with its outside counsel, cannot be separated from any related claim for money damages, is sought and could be imposed against the notice described Indemnified Party, (ii) in Section 11.6, assume control of the defence, compromise or settlement of event the Third Party Claim so long as:
(i) were to be unfavorably decided, it would reasonably be likely to lead to Losses, liability or create any financial or other obligation on the Indemnified Party has at all times the right to fully participate in the defence at its own cost and expense (except the Indemnifying Party must reimburse part of the Indemnified Party for all Losses incurred by which the Indemnified Party in connection with is not entitled to indemnification hereunder (other than to the investigation and defence extent of the Third Party Claim prior to Deductible) or Losses in excess of amounts then-held in the date Escrow Account, (iii) at the time of the assumption and thereafter, the Indemnifying Party validly exercised fails to demonstrate its right ability to assume conduct the investigation investigation, defense or prosecution actively and defence of the Third Party Claim);
diligently, (iiiv) the Third Party Claim involves only money damages and does not seek an injunction relates to or other equitable relief against the Indemnified Party;
arises in connection with any criminal or quasicriminal Action, or (iiiv) the Third Party Claim is not made or asserted by a supplier or customer of Seller;
(iv) the Indemnified Party determines in good faith that joint representation would not create a conflict of interest or be inappropriate where the Indemnifying Party is also a party or has an interest in such Third Party Claim, which interest conflicts with the interests of the Indemnified Party based on the advice of outside legal counsel. If an offer is made to settle a Third Party Claim, which offer the Indemnifying Party is permitted to settle under this Section 14.5(a) only upon the prior written consent of the Indemnified Party, and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party will give prompt written notice to the Indemnified Party to that effect. Notwithstanding the foregoing, no consent of the Indemnified Party shall be required for the Indemnifying Party to settle any Third Party Claim if (A) such settlement offer (1) requires only the payment of money damages for which the Indemnified Party is entitled to full indemnification and does not impose any continuing obligation on any Indemnified Party or its Affiliates, (2) provides, as a condition precedent thereto, a binding, complete, irrevocable and unconditional release from all Losses with respect to the subject matter thereof in favor of all Indemnified Parties that are a party to such Third Party Claim and their respective Affiliates and (3) does not require any Indemnified Party or its Affiliates to (x) admit any wrongdoing or acknowledge any rights of any Person or (y) waive any rights that the Indemnified Party may have against the Person making the Third Party Claim; and
, (vB) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the judgment of the where such Buyer Indemnified Party likely to have an adverse effect on is the Indemnified Party's Tax liability or its continuing business interests, the Sellers’ Representative agrees in writing that the entire amount of such proposed settlement constitutes Losses that are from the Escrow Account then available for distribution, subject to the other provisions of this Agreement and (C) the amount of such proposed settlement will not exceed the limitations contained in this Article XIV.
(b) If In the event that, subsequent to the Closing, an Indemnified Party becomes aware of a claim for indemnification pursuant to Section 14.3 that would not be a Third Party Claim (a “Direct Claim”), the Indemnified Party shall promptly give written notice thereof together with a statement of any available information regarding such Direct Claim to the Indemnifying Party; provided that no delay in or failure to give such notice pursuant to this Section 14.5(b) will adversely affect any of the other rights or remedies that such Indemnified Party has under this Agreement, or alter or relieve the Indemnifying Party’s obligation to indemnify such Indemnified Party, except to the extent the Indemnifying Party assumes is materially prejudiced thereby. Upon confirmed receipt by the defence Indemnifying Party of a Third Party notice of a Direct Claim, the Indemnifying Party must:
shall have thirty (i30) retain counsel satisfactory days from the receipt of such Claim Notice to the Indemnified Party, acting reasonably;
(ii) actively and diligently proceed with the defence, compromise or settlement of the Third Party Claim at its sole cost and expense;
(iii) pay or reimburse notify the Indemnified Party for any Taxes payable to an applicable Governmental Authority under applicable Law notwithstanding that the Third Indemnifying Party Claim is in dispute;
(iv) keep the Indemnified Party fully advised disputes such Direct Claim, or reserves rights with respect to the status of the Third Party such Direct Claim (including providing copies of all relevant documents promptly as they become available and giving access to all records and files relating to the defense of the Third Party Claim) and must arrange for its counsel to inform the Indemnified Party on a regular basis of the status of the Third Party Claim; and
(v) not consent to the entry of any judgment or enter into any settlement pending more information with respect to the Third Party Claim unless consented to in writing by the Indemnified Party (which consent may not be unreasonably or arbitrarily withheld or delayed).
(c) Provided that all the conditions specified in Section 11.8(a) are satisfied and the Indemnifying Party is not in breach of any of its other obligations under this Section 11.8, the Indemnified Party shall, at the expense of the Indemnifying Party, cooperate with the Indemnifying Party and use its reasonable efforts to make available to the Indemnifying Party all relevant information in its possession or under its control (provided that it does not cause either of them to breach any confidentiality obligations) and shall take such other steps as are, in the reasonable opinion of counsel for the Indemnifying Party, necessary to enable the Indemnifying Party to conduct such defence so long as:
(i) no admission of fault may be made by or on behalf of Buyers or any Buyer's Indemnified Party without the prior written consent of Buyer;
(ii) no admission of fault may be made by or on behalf of Seller or any Seller's Indemnified Party without the prior written consent of such Person;
(iii) a Representative of the Indemnified Party is not obligated to take any measures which, in the reasonable opinion of its legal counsel, could be prejudicial or unfavourable to the Indemnified Party; and
(iv) the Indemnified Party receives, as part of any compromise or settlement, a legally binding and enforceable unconditional release, which is in form and substance satisfactory to the Indemnified Party, acting reasonably, from any and all obligations or Liabilities it may have with respect to the Third Party Claim.
(d) thereto. If the Indemnifying Party does not assume notify the defence Indemnified Party of such dispute or reservation of rights within such initial thirty (30) day period, then the Indemnified Party may provide a Third Party Claim because: (i) it is not entitled to under Section 11.8(a); (ii) it has not elected to assume the defence of a Third Party Claim or fails to give subsequent written notice to the Indemnifying Party (a “Demand Notice”), provided that any such Demand Notice shall reassert the Direct Claim and assert the Indemnified Party’s good faith estimate of the Losses with respect to such Direct Claim. Upon confirmed receipt by the Indemnifying Party as specified in Section 11.8(a); or (iii) it is of a Demand Notice, if the Indemnifying Party shall not in compliance, in the opinion of have notified the Indemnified Party acting reasonablythat the Indemnifying Party disputes such Direct Claim, or reserves rights with any respect to such Direct Claim pending more information with respect thereto, within thirty (30) days from such confirmed receipt of such Demand Notice, then the amount of such Direct Claim shall be deemed, conclusively, a liability of the conditions listed Indemnifying Party subject to the limitations set forth in Section 11.8(b), this Article XIV. If the Indemnifying Party does timely notify the Indemnified Party has of such dispute, or reservation of rights, then the right Indemnified Party shall have thirty (30) days to assume respond in a written statement to the defence, compromise or settlement objection of the Third Party Claim and retain counsel in its sole discretion at the Indemnifying Party's sole cost and expense.
(e) Any settlement or other final determination of the Third Party Claim pursuant to Section 11.8(d) will be binding upon the Indemnifying Party. The Indemnifying Party shallIf after such thirty (30) day period there remains a dispute as to any such Direct Claim, at the sole cost and expense of the Indemnifying Party, cooperate fully with then the Indemnified Party and use its reasonable efforts the Indemnifying Party shall attempt in good faith for a period not to make exceed thirty (30) additional calendar days to agree upon the rights of the respective Parties with respect to such Direct Claim. If the Parties should so agree, a memorandum setting forth such agreement shall be prepared and signed by the Indemnifying Party and the Indemnified Party. If the Parties do not agree within such additional thirty (30) day period, then the Indemnified Party shall be free to pursue such remedies as may be available to the Indemnified Party all relevant information in its possession or under its control on the terms and take such other steps as are, in the reasonable opinion of counsel for the Indemnified Party, necessary to enable the Indemnified Party to conduct the defence. The Indemnifying Party shall reimburse the Indemnified Party promptly and periodically for Losses incurred defending against the Third Party Claim, and shall remain responsible for any Loss the Indemnified Party may suffer resulting from, arising out of, or relating to, the Third Party Claim subject to the fullest extent provided in provisions of this Article 11XIV.
Appears in 1 contract
Sources: Transaction Agreement (Nord Anglia Education, Inc.)
Indemnification Procedure for Third Party Claims. (a) The Each Party will notify the other Party in writing in the event it becomes aware of a Third Party claim for which indemnification may be sought hereunder. In case any proceeding shall be instituted involving any Person in respect of which indemnity may be sought pursuant to this Article 11, such Person (the “Indemnified Party”) shall promptly notify the other Party (the “Indemnifying Party’) in writing and the Indemnifying Party mayand Indemnified Party shall meet to discuss how to respond to any claims that are the subject matter of such proceeding; provided, however, that failure to provide such notification shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure (except that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnified Party failed to give such notice). The Parties shall cooperate in defense of such matter.
(b) If a Third Party claim is made against an Indemnified Party, the Indemnifying Party shall be entitled to participate in the defense thereof and, if it so chooses and acknowledges its obligation to indemnify the Indemnified Party therefor, to assume the defense thereof with counsel selected by written notice given the Indemnifying Party. Should the Indemnifying Party so elect to assume the defense of a Third Party claim, the Indemnifying Party shall not be liable to the Indemnified Party not later than 30 days after receipt of the notice described in Section 11.6, assume control of the defence, compromise or settlement of the Third Party Claim so long as:
(i) the Indemnified Party has at all times the right to fully participate in the defence at its own cost and expense (except the Indemnifying Party must reimburse the Indemnified Party for all Losses legal expenses subsequently incurred by the Indemnified Party in connection with the investigation and defence of the Third Party Claim prior to the date the Indemnifying Party validly exercised its right to assume the investigation and defence of the Third Party Claim);
(ii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief against the Indemnified Party;
(iii) the Third Party Claim is not made or asserted by a supplier or customer of Seller;
(iv) the Indemnified Party determines in good faith that joint representation would not create a conflict of interest or be inappropriate where the Indemnifying Party is also a party to the Third Party Claim; and
(v) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the judgment of the Indemnified Party likely to have an adverse effect on the Indemnified Party's Tax liability or its continuing business interests.
(b) defense thereof. If the Indemnifying Party assumes such defense, the defence of a Third Indemnified Party Claimshall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party must:
(i) retain shall control such defense. The Indemnifying Party shall be liable for the fees and expenses of counsel satisfactory to the Indemnified Party, acting reasonably;
(ii) actively and diligently proceed with the defence, compromise or settlement of the Third Party Claim at its sole cost and expense;
(iii) pay or reimburse employed by the Indemnified Party for any Taxes payable period during which the Indemnifying Party has failed to an applicable Governmental Authority under applicable Law notwithstanding that assume the Third Party Claim is in dispute;
defense thereof (iv) keep other than during the period prior to the time the Indemnified Party fully advised with respect to the status shall have given notice of the Third Party Claim (including providing copies of all relevant documents promptly claim as they become available and giving access to all records and files relating to the defense of the Third Party Claim) and must arrange for its counsel to inform the Indemnified Party on a regular basis of the status of the Third Party Claim; and
(v) not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim unless consented to in writing by the Indemnified Party (which consent may not be unreasonably or arbitrarily withheld or delayedprovided above).
(c) Provided that all the conditions specified in Section 11.8(a) are satisfied and If the Indemnifying Party is not in breach so elects to assume the defense of any Third Party claim, all of its other obligations under this Section 11.8, the Indemnified Party shall, at the expense of the Indemnifying Party, Parties shall cooperate with the Indemnifying Party in the defense or prosecution thereof. Such cooperation shall include the retention and use its reasonable efforts to make available (upon the Indemnifying Party’s request) the provision to the Indemnifying Party all of records and information that are reasonably relevant to such Third Party claim, and making employees available on a mutually convenient basis to provide additional information in its possession and explanation of any material provided hereunder. Whether or under its control (provided that it does not cause either of them to breach any confidentiality obligations) and shall take such other steps as are, in the reasonable opinion of counsel for the Indemnifying Party shall have assumed the defense of a Third Party claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party claim without the Indemnified Party’s prior written consent (which consent shall not be unreasonably withheld or delayed). If the Indemnifying Party shall have assumed the defense of a Third Party claim, necessary the Indemnified Party shall agree to enable any settlement, compromise or discharge of a Third Party claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to conduct such defence so long as:
(i) no admission of fault may be made by or on behalf of Buyers or any Buyer's Indemnified Party without pay the prior written consent of Buyer;
(ii) no admission of fault may be made by or on behalf of Seller or any Seller's Indemnified Party without the prior written consent of such Person;
(iii) a Representative full amount of the Indemnified Party is not obligated to take any measures which, liability in the reasonable opinion of its legal counsel, could be prejudicial or unfavourable to the Indemnified Party; and
(iv) the Indemnified Party receives, as part of any compromise or settlement, a legally binding and enforceable unconditional release, which is in form and substance satisfactory to the Indemnified Party, acting reasonably, from any and all obligations or Liabilities it may have connection with respect to the such Third Party Claim.
(d) If claim, and which releases the Indemnifying Party does not assume the defence of a completely in connection with such Third Party Claim because: (i) it is not entitled to under Section 11.8(a); (ii) it has not elected to assume the defence of a Third Party Claim or fails to give notice to the Indemnified Party as specified in Section 11.8(a); or (iii) it is not in compliance, in the opinion of the Indemnified Party acting reasonably, with any of the conditions listed in Section 11.8(b), the Indemnified Party has the right to assume the defence, compromise or settlement of the Third Party Claim and retain counsel in its sole discretion at the Indemnifying Party's sole cost and expenseclaim.
(e) Any settlement or other final determination of the Third Party Claim pursuant to Section 11.8(d) will be binding upon the Indemnifying Party. The Indemnifying Party shall, at the sole cost and expense of the Indemnifying Party, cooperate fully with the Indemnified Party and use its reasonable efforts to make available to the Indemnified Party all relevant information in its possession or under its control and take such other steps as are, in the reasonable opinion of counsel for the Indemnified Party, necessary to enable the Indemnified Party to conduct the defence. The Indemnifying Party shall reimburse the Indemnified Party promptly and periodically for Losses incurred defending against the Third Party Claim, and shall remain responsible for any Loss the Indemnified Party may suffer resulting from, arising out of, or relating to, the Third Party Claim to the fullest extent provided in this Article 11.
Appears in 1 contract
Indemnification Procedure for Third Party Claims. (a) The 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 maymay be liable to an Indemnitee hereunder is asserted or sought to be collected by a third party (a “Third Party Claim”), by written notice given the Indemnitee shall as soon as practicable deliver to the Indemnified Indemnifying Party not later than 30 days after receipt a notice (“Notice of the notice described in Section 11.6, assume control of the defence, compromise or settlement of the Claim”) with respect to such Third Party Claim. The Notice of Claim so long as:
shall (i) specify in reasonable detail the Indemnified basis for such claim and (ii) to the extent known by the Indemnitee, set forth a reasonable estimate 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 has at all times Claim, if any, and any other documents evidencing such Third Party Claim. Notwithstanding the right to fully participate foregoing, no delay or deficiency on the part of an Indemnitee in the defence at its own cost and expense (except so notifying the Indemnifying Party must reimburse the Indemnified Party for all Losses incurred by the Indemnified Party in connection with the investigation and defence of the Third Party Claim prior will limit any Indemnitee’s right to indemnification under this Article XI (except to the date extent such failure materially prejudices the Indemnifying Party validly exercised its right to assume the investigation and defence defense of the Third Party Claimsuch proceeding);
(ii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief against the Indemnified Party;
(iii) the Third Party Claim is not made or asserted by a supplier or customer of Seller;
(iv) the Indemnified Party determines in good faith that joint representation would not create a conflict of interest or be inappropriate where the Indemnifying Party is also a party to the Third Party Claim; and
(v) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the judgment of the Indemnified Party likely to have an adverse effect on the Indemnified Party's Tax liability or its continuing business interests.
(b) The Indemnifying Party will have 15 calendar days from the date on which the Indemnifying Party received the Notice of Claim to notify the Indemnitee that the Indemnifying Party 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 Indemnifying Party assumes the defence of a Third Party ClaimDefense in accordance herewith, the Indemnifying Party must:
(i) the Indemnitee may retain separate co-counsel satisfactory to the Indemnified Party, acting reasonably;
(ii) actively and diligently proceed with the defence, compromise or settlement of the Third Party Claim at its sole cost and expense;
(iii) pay or reimburse the Indemnified Party for any Taxes payable to an applicable Governmental Authority under applicable Law notwithstanding that the Third Party Claim is expense and participate in dispute;
(iv) keep the Indemnified Party fully advised with respect to the status of the Third Party Claim (including providing copies of all relevant documents promptly as they become available and giving access to all records and files relating to the defense of the Third Party ClaimClaim but the Indemnifying Party shall control the investigation, defense and settlement thereof, (ii) and must arrange for its counsel the Indemnitee will not file any papers or consent to inform the Indemnified Party on a regular basis entry of the status of any judgment or enter into any settlement with respect to the Third Party Claim; and
Claim without the prior written consent of the Indemnifying Party and (viii) the Indemnifying Party will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim unless consented to in writing by the Indemnified Party (which consent may not be unreasonably or arbitrarily withheld or delayed).
(c) Provided that all the conditions specified in Section 11.8(a) are satisfied and the Indemnifying Party is not in breach of any of its other obligations under this Section 11.8, the Indemnified Party shall, at the expense of the Indemnifying Party, cooperate with the Indemnifying Party and use its reasonable efforts to make available to the Indemnifying Party all relevant information in its possession or under its control (provided that it does not cause either of them to breach any confidentiality obligations) and shall take such other steps as are, in the reasonable opinion of counsel for the Indemnifying Party, necessary to enable the Indemnifying Party to conduct such defence so long as:
(i) no admission of fault may be made by or on behalf of Buyers or any Buyer's Indemnified Party without the prior written consent of Buyer;
(ii) no admission of fault may be made by the Indemnitee. The Parties will act in good faith in responding to, defending against, settling or on behalf of Seller or otherwise dealing with such claims. The Parties will also cooperate in any Seller's Indemnified Party without the prior written consent of such Person;
(iii) a Representative of the Indemnified Party is not obligated defense and give each other reasonable access to take any measures which, in the reasonable opinion of its legal counsel, could be prejudicial or unfavourable all information relevant thereto to the Indemnified Party; and
(iv) the Indemnified Party receivesextent permitted by applicable Law or applicable contractual restrictions, as part of any compromise or settlement, a legally binding and enforceable unconditional release, which is in form and substance satisfactory subject to the Indemnified Party, acting reasonably, from any and all obligations or Liabilities it may have with respect to the Third Party Claimentering into appropriate confidentiality agreements.
(dc) If the Indemnifying Party does not assume the defence of a Third Party Claim because: (i) it is not Defense within 15 calendar days of receipt of the Notice of Claim, the Indemnitee will be entitled to under Section 11.8(a); (ii) it has not elected to assume the defence of a Third Party Claim Defense (and, if the Indemnitee incurs a Loss with respect to the matter in question for which the Indemnitee is entitled to indemnification pursuant to Section 11.2 or fails to give Section 11.3, at the expense of the Indemnifying Party) upon delivery of notice to such effect to the Indemnified Party as specified in Section 11.8(a)Indemnifying Party; or (iii) it is not in compliance, in the opinion of the Indemnified Party acting reasonably, with any of the conditions listed in Section 11.8(b)provided that, the Indemnified Indemnifying Party has shall have the right to assume the defence, compromise or settlement of participate in the Third Party Claim and retain counsel in its sole discretion at the Indemnifying Party's sole cost and expense.
(e) Any settlement or other final determination of the Third Party Claim pursuant to Section 11.8(d) will be binding upon the Indemnifying Party. The Indemnifying Party shall, Defense at the sole cost and expense of the Indemnifying Party, cooperate fully with but the Indemnified Party Indemnitee shall control the investigation, defense and use its reasonable efforts to make available to settlement thereof.
(d) Notwithstanding the Indemnified Party all relevant information in its possession or under its control and take such other steps as areforegoing, in no event may the reasonable opinion Stockholders’ Representative (on behalf of counsel for the Indemnified PartyCompany Indemnifying Parties) assume, necessary to enable the Indemnified Party to conduct the defence. The Indemnifying Party shall reimburse the Indemnified Party promptly and periodically for Losses incurred defending against the Third Party Claim, and shall remain responsible for any Loss the Indemnified Party may suffer resulting from, arising out maintain control of, or relating toparticipate in, the Third Party Claim to defense of any proceeding (i) involving Losses in excess of the fullest extent provided value of any remaining amount in this Article 11the Indemnification Escrow Fund, (ii) involving criminal liability on the part of any Buyer Indemnitee, (iii) that is asserted directly by or on behalf of a Person that is a supplier or customer of the Company or the Surviving Corporation following the Mergers, or (iv) in which any relief other than monetary damages is sought against a Buyer Indemnitee.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Tabula Rasa HealthCare, Inc.)
Indemnification Procedure for Third Party Claims. Subject to Section 11.11 relating to Taxes, in the event that subsequent to the Closing, any Person that is or may be entitled to indemnification under this Agreement (aan “Indemnified Party”) receives notice of the assertion of any claim, issuance of any Governmental Order or the commencement of any Legal Proceedings by any Person who is not a Party or an Affiliate of a Party, including any Governmental Authority (a “Third Party Claim”), against such Indemnified Party and for which a Party is or may be required to provide indemnification under this Agreement (an “Indemnifying Party”), such Indemnified Party shall give written notice thereof, together with a statement of any reasonably available information regarding such Third Party Claim to such Indemnifying Party within thirty (30) days after learning of such Third Party Claim (or within such shorter time as may be necessary to give such Indemnifying Party a reasonable opportunity to respond to and defend such Third Party Claim); provided, however, that the failure by the Indemnified Party to give such written notice during such period shall not relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits substantial rights or defenses by reason of such failure. The Indemnifying Party may, by shall have the right upon written notice to the Indemnified Party, 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, with legal counsel reasonably satisfactory to the Indemnified Party. In the event that the Indemnifying Party does not conduct the defense of the subject Third Party Claim, then the Indemnified Party may conduct the defense of the subject Third Party Claim and the Indemnifying Party will cooperate with and make available to the Indemnified Party such assistance and materials as may be reasonably requested by the Indemnified Party. In the event that the Indemnifying Party does elect to conduct the defense of the subject Third Party Claim, the Indemnified Party will cooperate with and make available to the Indemnifying Party such assistance and materials as may be reasonably requested by 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 Third Party 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 Third Party Claim, unless pursuant to or as a result of such settlement or cessation, (i) no injunctive or other equitable relief would be imposed against the Indemnified Party, (ii) does not contain any admission of liability or wrongdoing and (iii) no liability or financial or other obligation on the part of the Indemnified Party is imposed or created and each claimant or plaintiff in such Third Party Claim has given to the Indemnified Party an unconditional release from all liability with respect to such Third Party Claim. The Indemnifying Party shall not later than 30 days after receipt of be entitled to control, and the notice described in Section 11.6Indemnified Party shall be entitled to have sole control over, assume control of the defence, compromise defense or settlement of the any Third Party Claim so long as:
(i) the Indemnified Party has at all times the right to fully participate solely in the defence at its own cost and expense (except the Indemnifying Party must reimburse the Indemnified Party for all Losses incurred by the Indemnified Party in connection with the investigation and defence event of the Third Party Claim prior a proceeding to the date the Indemnifying Party validly exercised its right to assume the investigation and defence of the Third Party Claim);
(ii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief against the Indemnified Party;
(iii) the Third Party Claim is not made or asserted by a supplier or customer of Seller;
(iv) the Indemnified Party determines in good faith that joint representation would not create a conflict of interest or be inappropriate where which the Indemnifying Party is also a party to the Third Party Claim; and
(v) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the judgment of and the Indemnified Party likely to have an adverse effect on provides a legal opinion that a material conflict exists between the Indemnified Party's Tax liability or its continuing business interests.
(b) If Party and the Indemnifying Party assumes the defence of Party. If an offer is made to settle a Third Party Claim, the Indemnifying Party must:
(i) retain counsel satisfactory to the Indemnified Party, acting reasonably;
(ii) actively and diligently proceed with the defence, compromise or settlement of the Third Party Claim at its sole cost and expense;
(iii) pay or reimburse the Indemnified Party for any Taxes payable to an applicable Governmental Authority under applicable Law notwithstanding that the Third Party Claim is in dispute;
(iv) keep the Indemnified Party fully advised with respect to the status of the Third Party Claim (including providing copies of all relevant documents promptly as they become available and giving access to all records and files relating to the defense of the Third Party Claim) and must arrange for its counsel to inform the Indemnified Party on a regular basis of the status of the Third Party Claim; and
(v) not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim unless consented to in writing by the Indemnified Party (which consent may not be unreasonably or arbitrarily withheld or delayed).
(c) Provided that all the conditions specified in Section 11.8(a) are satisfied and offer the Indemnifying Party is not in breach of any of its other obligations permitted to settle under this Section 11.8, the Indemnified Party shall, at the expense of the Indemnifying Party, cooperate with the Indemnifying Party and use its reasonable efforts to make available to the Indemnifying Party all relevant information in its possession or under its control (provided that it does not cause either of them to breach any confidentiality obligations) and shall take such other steps as are, in the reasonable opinion of counsel for the Indemnifying Party, necessary to enable the Indemnifying Party to conduct such defence so long as:
(i) no admission of fault may be made by or on behalf of Buyers or any Buyer's Indemnified Party without 11.6 only upon the prior written consent of Buyer;
(ii) no admission of fault may be made by or on behalf of Seller or any Seller's Indemnified Party without the prior written consent of such Person;
(iii) a Representative of the Indemnified Party is not obligated to take any measures which, in the reasonable opinion of its legal counsel, could be prejudicial or unfavourable to the Indemnified Party; and
(iv) the Indemnified Party receives, as part of any compromise or settlement, a legally binding and enforceable unconditional release, which is in form and substance satisfactory to the Indemnified Party, acting reasonably, from any and all obligations or Liabilities it may have with respect to the Third Party Claim.
(d) If the Indemnifying Party does not assume desires to accept and agree to such offer, the defence of a Third Indemnifying Party Claim because: (i) it is not entitled to under Section 11.8(a); (ii) it has not elected to assume the defence of a Third Party Claim or fails to will give prompt written notice to the Indemnified Party as specified in Section 11.8(a); or (iii) it is not in compliance, in the opinion of the Indemnified Party acting reasonably, with any of the conditions listed in Section 11.8(b), the Indemnified Party has the right to assume the defence, compromise or settlement of the Third Party Claim and retain counsel in its sole discretion at the Indemnifying Party's sole cost and expensethat effect.
(e) Any settlement or other final determination of the Third Party Claim pursuant to Section 11.8(d) will be binding upon the Indemnifying Party. The Indemnifying Party shall, at the sole cost and expense of the Indemnifying Party, cooperate fully with the Indemnified Party and use its reasonable efforts to make available to the Indemnified Party all relevant information in its possession or under its control and take such other steps as are, in the reasonable opinion of counsel for the Indemnified Party, necessary to enable the Indemnified Party to conduct the defence. The Indemnifying Party shall reimburse the Indemnified Party promptly and periodically for Losses incurred defending against the Third Party Claim, and shall remain responsible for any Loss the Indemnified Party may suffer resulting from, arising out of, or relating to, the Third Party Claim to the fullest extent provided in this Article 11.
Appears in 1 contract
Indemnification Procedure for Third Party Claims. (a) The In the event that subsequent to the Closing Date any Indemnified Party becomes aware of any Claim or the commencement of any action or proceeding against such Indemnified Party by any Person who is not a party to this Agreement (including any Governmental Authority) (a “Third Party Claim”), as to which such Indemnified Party would be entitled to assert an Indemnity Claim, such Indemnified Party shall promptly give written notice thereof together with a statement of any available information regarding such Third Party Claim, including, to the extent known by such Indemnified Party, the alleged factual basis for the Third Party Claim and the Losses claimed and referring to the provision of this Agreement pursuant to which indemnification is sought (the “Notice of Claim”) to the Indemnifying Party maypromptly after learning of such Third Party Claim. Failure by the Indemnified Party to provide notice on a timely basis of a Third Party Claim shall not affect the right of the Indemnified Party to obtain indemnification as a result of such Third Party Claim, except to the extent of any direct damages caused by written notice given such delay. If (i) the Indemnifying Party is any Seller and (A) such Third Party Claim does not seek injunctive or other equitable relief involving Purchaser or its Affiliates, (B) a Purchaser Protected Party’s insurance carrier does not require, as a condition to such Purchaser Protected Party’s eligibility to recover insurance proceeds on account of such Third Party Claim, that such carrier control the defense of any such Third Party Claim, (C) such Third Party Claim does not seek recourse which could reasonably be expected to adversely affect the ongoing business or operations (including customer, supplier or employee relationships) of a Purchaser Protected Party or any of its Affiliates (including their rights to use the Company Intellectual Property) or otherwise have a Material Adverse Effect, (D) the Agent can demonstrate that it has sufficient amounts which may be used in connection with such Third Party Claim to (I) defend such Third Party Claim, and (II) defend all other Third Party Claims then pending which the Agent is defending pursuant to this Section 8.8, and (E) the Indemnifying Party has acknowledged in writing to the Indemnified Party not later than 30 days after receipt of the notice described in Section 11.6, assume control of the defence, compromise or settlement of the Third Party Claim so long as:
(i) the Indemnified Party has at all times the right its unconditional obligation to fully participate in the defence at its own cost and expense (except the Indemnifying Party must reimburse indemnify the Indemnified Party for all Losses incurred by the Indemnified Party in connection with the investigation and defence of the Third Party Claim prior to the date the Indemnifying Party validly exercised its right to assume the investigation and defence of the such Third Party Claim);
, or (ii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief against the Indemnified Party;
(iii) the Third Party Claim is not made or asserted by a supplier or customer of Seller;
(iv) the Indemnified Party determines in good faith that joint representation would not create a conflict of interest or be inappropriate where if the Indemnifying Party is also a party Purchaser, then in any such case, except in the case of Claims described in Section 7.6(f), the Indemnifying Party shall have the right, upon written notice to the Third Indemnified Party (the “Defense Notice”) within fifteen days of its receipt from the Indemnified Party of the Notice of Claim; and
(v) settlement of, or an adverse judgment with respect toto conduct at its expense the defense against such Claim in its own name, the Third Party Claim is notor, if necessary, in the judgment name of the Indemnified Party; provided, however, that the Indemnified Party likely shall have the right to have approve the defense counsel representing the Indemnifying Party in such defense, 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 days after the Defense Notice is provided, then the Indemnifying Party shall propose an adverse effect on alternate defense counsel, which shall be subject again to the Indemnified Party's Tax liability ’s approval, which approval shall not be unreasonably withheld or its continuing business interestsdelayed.
(b) If In the event that the Indemnifying Party assumes shall fail to give the defence Defense Notice within the time and as prescribed by Section 8.8(a), or if the Indemnifying Party does not have the right to defend such Third Party Claim pursuant to Section 8.8(a), then, except in the case of Claims described in Section 7.6(f), in either such event the Indemnified Party shall have the right to conduct such defense in good faith with counsel reasonably acceptable to the Indemnifying Party, but the Indemnified Party (or any insurance carrier defending such Third Party Claim on the Indemnified Party’s behalf) shall be prohibited from compromising or settling the Third Party Claim without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed; provided, however, that if the Agent is prohibited from conducting the defense of a Third Party ClaimClaim solely because of the operation of clause (i)(E) of Section 8.8(a), then (i) the Agent shall have the right to assume the conduct of such defense upon its delivery of an acknowledgement in writing meeting the requirements of such clause (i)(E), and (ii) the Indemnified Party shall have the right to approve the defense counsel representing the Indemnifying Party must:
(i) retain counsel satisfactory to the Indemnified Partyin such defense, acting reasonably;
(ii) actively and diligently proceed with the defence, compromise or settlement of the Third Party Claim at its sole cost and expense;
(iii) pay or reimburse the Indemnified Party for any Taxes payable to an applicable Governmental Authority under applicable Law notwithstanding that the Third Party Claim is in dispute;
(iv) keep the Indemnified Party fully advised with respect to the status of the Third Party Claim (including providing copies of all relevant documents promptly as they become available and giving access to all records and files relating to the defense of the Third Party Claim) and must arrange for its counsel to inform the Indemnified Party on a regular basis of the status of the Third Party Claim; and
(v) not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim unless consented to in writing by the Indemnified Party (which consent may approval shall not be unreasonably or arbitrarily withheld or delayed).
(c) Provided In the event that all the conditions specified in Section 11.8(a) are satisfied and the Indemnifying Party is not does deliver a Defense Notice and thereby elects to conduct the defense of such Third Party Claim in breach of any of its other obligations under this accordance with Section 11.88.8(a), the Indemnified Party shallwill cooperate with and make available to the Indemnifying Party such assistance and materials as it may reasonably request, and such cooperation shall be at the expense of the Indemnifying Party, cooperate with the Indemnifying Party and use its reasonable efforts to make available to the Indemnifying Party all relevant information in its possession or under its control (provided that it does not cause either of them to breach any confidentiality obligations) and shall take such other steps as are, in the reasonable opinion of counsel for the Indemnifying Party, necessary to enable the Indemnifying Party to conduct such defence so long as:
(i) no admission of fault may be made by or on behalf of Buyers or any Buyer's Indemnified Party without . Without the prior written consent of Buyer;
the Indemnified Party, the Indemnifying Party (iiand any insurance carrier defending such Third Party Claim on the Indemnifying Party’s behalf) no admission will not enter into any settlement of fault may be made by 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 behalf the part of Seller or any Seller's Indemnified Party without the prior written consent of for which such Person;
(iii) a Representative of the Indemnified Party is not obligated entitled to take any measures whichbe indemnified hereunder. If a firm offer is made to settle a Third Party Claim, in which offer the reasonable opinion of its legal counselIndemnifying Party is permitted to settle under this Section 8.8, could be prejudicial or unfavourable and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party will give written notice to the Indemnified Party; and
(iv) Party to that effect. If the Indemnified Party receivesobjects to such firm offer within fifteen days after its receipt of such notice, as part the Indemnified Party may continue to contest or defend such Third Party Claim and, in such event, the maximum amount for which the Indemnifying Party shall be liable in connection with such Third Party Claim will not exceed the amount of any compromise such settlement offer, plus costs and expenses paid or settlement, a legally binding and enforceable unconditional release, which is in form and substance satisfactory incurred up to the Indemnified Party, acting reasonably, from point such notice had been delivered. Failure at any and all obligations or Liabilities it may have with respect time of the Indemnifying Party to the diligently defend a Third Party ClaimClaim as required herein shall entitle the Indemnified Party to assume the defense and settlement of such Third Party Claim as if the Indemnifying Party had never elected to do so as provided in this Section.
(d) If the Indemnifying Party does not assume the defence of a Third Party Claim because: (i) it is not entitled to under Section 11.8(a); (ii) it has not elected to assume the defence of a Third Party Claim Any judgment entered or fails to give notice to the Indemnified Party as specified in Section 11.8(a); or (iii) it is not in compliance, settlement agreed upon in the opinion of the Indemnified Party acting reasonably, with any of the conditions listed in Section 11.8(b), the Indemnified Party has the right to assume the defence, compromise or settlement of the Third Party Claim and retain counsel in its sole discretion at the Indemnifying Party's sole cost and expense.
(e) Any settlement or other final determination of the Third Party Claim pursuant to Section 11.8(d) will manner provided herein shall be binding upon the Indemnifying Party. The , and shall be conclusively deemed to be an obligation with respect to which the Indemnifying Party shall, at the sole cost and expense of the Indemnifying Party, cooperate fully with the Indemnified Party and use its reasonable efforts shall be obligated to make available to the Indemnified Party all relevant information in its possession or under its control and take such other steps as are, in the reasonable opinion of counsel for indemnify the Indemnified Party, necessary to enable the Indemnified Party to conduct the defence. The Indemnifying Party shall reimburse the Indemnified Party promptly and periodically for Losses incurred defending against the Third Party Claim, and shall remain responsible for any Loss the Indemnified Party may suffer resulting from, arising out of, or relating to, the Third Party Claim in each case subject to the fullest extent provided in this Article 11Indemnifying Party’s right to appeal an appealable judgment or order.
Appears in 1 contract
Indemnification Procedure for Third Party Claims. (a) The If a Buyer Indemnified Party or a Seller Indemnified Party seeks indemnification under this Article 9, such party (the “Indemnified Party”) shall give written notice to the other party (the “Indemnifying Party”) of the facts and circumstances giving rise to the claim. In that regard, if any claim shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Party to indemnity pursuant to this Article 9 (a “Third Party Claim”), the Indemnified Party shall promptly notify the Indemnifying Party mayof such Third Party Claim in writing, by written notice given specifying the basis of such claim and the facts pertaining thereto and the Indemnifying Party, if the Indemnifying Party so elects, may assume and control the defense thereof at the Indemnifying Party’s expense (and shall consult with the Indemnified Party with respect thereto), including the engagement of counsel reasonably satisfactory to the Indemnified Party not later than 30 days after receipt of Party; provided that, as a condition precedent to the notice described in Section 11.6, Indemnifying Party’s right to assume control of the defencesuch defense, compromise or settlement of the Third Party Claim so long as:
(i) the Indemnified Party has at all times the right to fully participate in the defence at its own cost and expense (except the Indemnifying Party must reimburse 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 all Losses incurred by relating to such claim and unconditionally guarantees the Indemnified payment and performance of any liability or obligation that may arise with respect to such claim or the facts giving rise to such claim for indemnification; provided, further that the Indemnifying Party in connection with shall not have the investigation and defence right to assume control of the such defense of a Third Party Claim prior to the date the Indemnifying Party validly exercised its right to assume the investigation and defence of the Third Party Claim);
(iiw) the Third Party Claim involves only money damages and does not seek an that seeks a temporary restraining order, a preliminary or permanent injunction or other equitable relief specific performance against the Indemnified Party;
; (iiix) the Third Party Claim is not made or asserted by a supplier or customer of Seller;
(iv) that involves criminal allegations against the Indemnified Party determines in good faith Party; (y) that, if unsuccessful, would set a precedent that joint representation would not create a conflict of interest or be inappropriate where the Indemnifying Party is also a party to the Third Party Claim; and
(v) settlement ofmaterially interfere with, or an have a material adverse judgment with respect toeffect on, the Third Party Claim is not, in the judgment business or financial condition of the Indemnified Party likely to have an adverse effect on or (z) that could materially affect the Indemnified Party's Tax liability of the Buyer (or its continuing business interestsAffiliates) for Taxes for any period (or portion thereof) ending after the Closing Date.
(b) If the Indemnifying Party assumes is permitted to assume and control the defence defense of a Third Party ClaimClaim and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party must:
in any such action 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 (iA) retain the engagement thereof has been specifically authorized by the Indemnifying Party in writing, (B) the Indemnified Party has been advised by counsel satisfactory to that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party, acting reasonably;
or (iiC) actively and the Indemnifying Party has failed to employ counsel and/or diligently proceed with the defence, compromise or settlement of the Third Party Claim at its sole cost and expense;
(iii) pay or reimburse the Indemnified Party for any Taxes payable to an applicable Governmental Authority under applicable Law notwithstanding that the Third Party Claim is in dispute;
(iv) keep the Indemnified Party fully advised with respect to the status of the Third Party Claim (including providing copies of all relevant documents promptly as they become available and giving access to all records and files relating to conduct the defense of the Third Party Claim) and must arrange for its counsel to inform the Indemnified Party on a regular basis of the status of against the Third Party Claim; and
(v) not consent to in which case the entry fees and expenses of any judgment or enter into any settlement with respect to the Indemnified Party’s counsel shall be paid by the Indemnifying Party. If the Indemnifying Party has assumed the defense of a Third Party Claim unless consented to in writing by accordance with the Indemnified Party (which consent may not be unreasonably or arbitrarily withheld or delayed).
(c) Provided that all the conditions specified in Section 11.8(a) are satisfied and terms hereof, the Indemnifying Party is not in breach of may enter into a settlement or consent to any of its other obligations under this Section 11.8, the Indemnified Party shall, at the expense of the Indemnifying Party, cooperate with the Indemnifying Party and use its reasonable efforts to make available to the Indemnifying Party all relevant information in its possession or under its control (provided that it does not cause either of them to breach any confidentiality obligations) and shall take such other steps as are, in the reasonable opinion of counsel for the Indemnifying Party, necessary to enable the Indemnifying Party to conduct such defence so long as:
(i) no admission of fault may be made by or on behalf of Buyers or any Buyer's Indemnified Party judgment without the prior written consent of Buyer;
(ii) no admission of fault may be made by or on behalf of Seller or any Seller's the Indemnified Party so long as (I) such settlement or judgment involves monetary damages only, all of which will be paid, without limitation, by the prior written consent of such Person;
Indemnifying Party and (iiiII) a Representative term of the settlement or judgment is that the Person or Persons asserting such claim unconditionally and irrevocably release all Indemnified Parties from all liability with respect to such claim; otherwise, the consent of the Indemnified Party is shall be required in order to enter into any settlement of, or consent to the entry of a judgment with respect to, any claim, which consent shall not obligated be unreasonably withheld or delayed. A failure by an Indemnified Party to take give timely, complete or accurate notice as provided in this Article 9 will not affect the rights or obligations of any measures whichparty hereunder except and only to the extent that, in the reasonable opinion as a result of such failure, any party entitled to receive such notice was deprived of its legal counsel, could be prejudicial right to recover any payment under its applicable insurance coverage or unfavourable was otherwise directly and materially damaged as a result of such failure to the Indemnified Party; and
(iv) the Indemnified Party receives, as part of any compromise or settlement, a legally binding and enforceable unconditional release, which is in form and substance satisfactory to the Indemnified Party, acting reasonably, from any and all obligations or Liabilities it may have with respect to the Third Party Claimgive timely notice.
(dc) Any claim by an Indemnified Party for indemnification other than indemnification against a Third Party Claim (a “Direct Claim”) will be asserted by giving the Indemnifying Party written notice thereof, and the Indemnifying Party will have a period of thirty (30) calendar days within which to satisfy such Direct Claim. If the Indemnifying Party does not assume the defence of a Third Party Claim because: so respond within such thirty (i30) it is not entitled to under Section 11.8(a); (ii) it has not elected to assume the defence of a Third Party Claim or fails to give notice to the Indemnified Party as specified in Section 11.8(a); or (iii) it is not in compliance, in the opinion of the Indemnified Party acting reasonably, with any of the conditions listed in Section 11.8(b)calendar day period, the Indemnified Indemnifying Party has the right to assume the defence, compromise or settlement of the Third Party Claim and retain counsel in its sole discretion at the Indemnifying Party's sole cost and expense.
(e) Any settlement or other final determination of the Third Party Claim pursuant to Section 11.8(d) will be binding upon the Indemnifying Party. The Indemnifying Party shall, at the sole cost and expense of the Indemnifying Party, cooperate fully with the Indemnified Party and use its reasonable efforts deemed to make available to the Indemnified Party all relevant information in its possession or under its control and take have accepted such other steps as are, in the reasonable opinion of counsel for the Indemnified Party, necessary to enable the Indemnified Party to conduct the defence. The Indemnifying Party shall reimburse the Indemnified Party promptly and periodically for Losses incurred defending against the Third Party Direct Claim, and shall remain responsible for any Loss the Indemnified Party may suffer resulting from, arising out of, or relating to, the Third Party Claim to the fullest extent provided in this Article 11.
Appears in 1 contract
Sources: Asset Purchase Agreement (Power Solutions International, Inc.)
Indemnification Procedure for Third Party Claims. Upon the assertion by any third party of a claim against a 3RP Indemnified Party or an SAMARITAN Indemnified Party that may give rise to right of indemnification under this Agreement, the party who, or whose directors, officers or employees, is claiming a right to indemnification (athe "Indemnified Party") The shall give prompt notice to the party alleged to have the duty to indemnify (the "Indemnifying Party") of the existence of such claim (provided that the failure to give such notice in timely fashion shall not release the Indemnifying Party mayof its obligations of indemnification hereunder except to the extent that the Indemnifying Party has been prejudiced thereby) and shall give the Indemnifying Party reasonable opportunity to control, by written notice given to defend and/or settle such claim at its own expense and with counsel of its own selection; provided, however, that the Indemnified Party not later than 30 days after receipt of the notice described in Section 11.6shall, assume control of the defence, compromise or settlement of the Third Party Claim so long as:
(i) the Indemnified Party has at all times times, have the right to fully participate in the defence such defense at its own cost expense with separate counsel and, provided that both parties to the extent that they are not contractually or legally excluded therefrom, or otherwise prejudiced in a legal position by so doing, shall cooperate with each other and expense (except with their respective insurers in relation to the defense of such third party claim. The Indemnifying Party must reimburse shall consult with the Indemnified Party for all Losses incurred by the Indemnified Party in connection with the investigation and defence respect to settlement of the Third Party Claim prior to the date the any claim. The Indemnifying Party validly exercised its shall have the right to assume settle any claim without the investigation and defence consent of the Third Party Claim);
(ii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief against the Indemnified Party;
(iii) the Third Party Claim is not made or asserted by a supplier or customer of Seller;
(iv) the Indemnified Party determines in good faith that joint representation would not create a conflict of interest or be inappropriate where the Indemnifying Party is also a party to the Third Party Claim; and
(v) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the judgment of the Indemnified Party likely to have an adverse effect on the Indemnified Party's Tax liability or its continuing business interests.
(b) If the Indemnifying Party assumes the defence of a Third Party Claim, the Indemnifying Party must:
(i) retain counsel satisfactory to the Indemnified Party, acting reasonably;
(ii) actively and diligently proceed with the defence, compromise or settlement of the Third Party Claim at its sole cost and expense;
(iii) pay or reimburse provided that the Indemnified Party for any Taxes payable is unconditionally released from such claim and it is not otherwise prejudiced by the terms of settlement (including, without limitation, that no obligations in addition to an applicable Governmental Authority under applicable Law notwithstanding that the Third Party Claim is in dispute;
(iv) keep those set forth herein are imposed upon the Indemnified Party fully advised with respect to Party). In the status of the Third Party Claim (including providing copies of all relevant documents promptly as they become available and giving access to all records and files relating to the defense of the Third Party Claim) and must arrange for its counsel to inform the Indemnified Party on a regular basis of the status of the Third Party Claim; and
(v) not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim unless consented to in writing by the Indemnified Party (which consent may not be unreasonably or arbitrarily withheld or delayed).
(c) Provided that all the conditions specified in Section 11.8(a) are satisfied and event the Indemnifying Party is not in breach of any of its other obligations under this Section 11.8elects to defend such claim, the Indemnified Party shall, at the expense of the Indemnifying Party, cooperate with the Indemnifying Party and use its reasonable efforts to make available to the Indemnifying Party all relevant information in its possession or under its control (provided that it does may not cause either of them to breach any confidentiality obligations) and shall take settle such other steps as are, in the reasonable opinion of counsel for the Indemnifying Party, necessary to enable the Indemnifying Party to conduct such defence so long as:
(i) no admission of fault may be made by or on behalf of Buyers or any Buyer's Indemnified Party claim without the prior written consent of Buyer;
(ii) no admission of fault may be made by or on behalf of Seller or any Seller's Indemnified Party without the prior written consent of such Person;
(iii) a Representative of the Indemnified Party is not obligated to take any measures which, in the reasonable opinion of its legal counsel, could be prejudicial or unfavourable to the Indemnified Indemnifying Party; and
(iv) the Indemnified Party receives, as part of any compromise or settlement, a legally binding and enforceable unconditional release, which is in form and substance satisfactory to the Indemnified Party, acting reasonably, from any and all obligations or Liabilities it may have with respect to the Third Party Claim.
(d) . If the Indemnifying Party does not assume the defence of shall, within a Third Party Claim because: reasonable time after such notice has been given, fail to defend, compromise or settle such claim, (i) it is not entitled to under Section 11.8(a); (ii) it has not elected to assume the defence of a Third Party Claim or thereafter fails to give notice to diligently defend such claim) then the Indemnified Party as specified in Section 11.8(a); shall have the right to defend, compromise or (iii) it is not in compliancesettle such claim without prejudice to its rights of indemnification hereunder. Notwithstanding the foregoing, in the opinion event of the Indemnified Party acting reasonablyany dispute with respect to indemnity hereunder, with any of the conditions listed in Section 11.8(b), the Indemnified Party has the right each party shall be entitled to assume the defence, compromise or settlement of the Third Party Claim and retain counsel in its sole discretion at the Indemnifying Party's sole cost and expense.
(e) Any settlement or other final determination of the Third Party Claim pursuant to Section 11.8(d) will be binding upon the Indemnifying Party. The Indemnifying Party shall, at the sole cost and expense of the Indemnifying Party, cooperate fully with the Indemnified Party and use its reasonable efforts to make available to the Indemnified Party all relevant information in its possession or under its control and take such other steps as are, participate in the reasonable opinion defense of counsel for such claim and to join and implead the Indemnified Party, necessary to enable the Indemnified Party to conduct the defence. The Indemnifying Party shall reimburse the Indemnified Party promptly and periodically for Losses incurred defending against the Third Party Claim, and shall remain responsible for other in any Loss the Indemnified Party may suffer resulting from, arising out of, or relating to, the Third Party Claim to the fullest extent provided in this Article 11such action.
Appears in 1 contract
Sources: License and Distribution Agreement (Samaritan Pharmaceuticals Inc)
Indemnification Procedure for Third Party Claims. Promptly after receipt by a party entitled to indemnification hereunder (athe “Indemnified Party”) 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 which a claim for indemnification is to be made pursuant to Section 9.1 or 9.2 herein, the Indemnified Party shall give written notice to the other party (the “Indemnifying Party”) of such Third Party Claim. The Indemnifying Party may, by written notice given shall be entitled to participate in and to assume the Indemnified Party not later than 30 days after receipt defense of the notice described in Section 11.6, assume control of the defence, compromise or settlement of the such Third Party Claim so long as:
(i) the Indemnified Party has at all times the right to fully participate in the defence at its own cost and expense (except the Indemnifying Party must reimburse the Indemnified Party for all Losses incurred by the Indemnified Party in connection with the investigation and defence of the Third Party Claim prior to the date the Indemnifying Party validly exercised its right to assume the investigation and defence of the Third Party Claim);
(ii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief against the Indemnified Party;
(iii) the Third Party Claim is not made or asserted by a supplier or customer of Seller;
(iv) the Indemnified Party determines in good faith that joint representation would not create a conflict of interest or be inappropriate where the Indemnifying Party is also a party to the Third Party Claim; and
(v) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the judgment of the Indemnified Party likely to have an adverse effect on the Indemnified Party's Tax liability or its continuing business interests.
(b) If the Indemnifying Party assumes the defence of a Third Party Claim, the Indemnifying Party must:
(i) retain counsel reasonably satisfactory to the Indemnified Party, acting reasonably;
(ii) actively 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 proceed with pursue such defense, the defence, compromise or settlement of the Third Indemnifying Party Claim at its sole cost and expense;
(iii) pay or reimburse the shall not be liable to such Indemnified Party for any Taxes payable 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 an applicable Governmental Authority under applicable Law notwithstanding that control its defense, including the selection of separate counsel (at the cost and expense of the Indemnifying Party), of any Third Party Claim is if such claim: (i) may result in dispute;
injunctions or other equitable remedies in respect of the Indemnified 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 significant adverse impact on the business or the financial condition of the Indemnified Party (including a Material Adverse Effect on the tax liabilities, earnings or ongoing business relationships of the Indemnified Party) even if the Indemnifying Party pays all indemnification amounts in full or (iv) keep the anticipated defendants in any such situation, proceeding or action include both the Indemnified Party fully advised with respect to and the status of the Third Party Claim (including providing copies of all relevant documents promptly as they become available Indemnifying Party, and giving access to all records and files relating to the defense of the Third Party Claim) and must arrange for its counsel to inform the Indemnified Party on a regular basis of the status of the Third Party Claim; and
(v) not consent 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 entry of any judgment or Indemnifying Party. No Indemnifying Party will enter into any settlement with respect to the such Third Party Claim unless consented to in writing by the Indemnified Party (which consent may not be unreasonably or arbitrarily withheld or delayed).
(c) Provided that all the conditions specified in Section 11.8(a) are satisfied and the Indemnifying Party is not in breach of any of its other obligations under this Section 11.8, the Indemnified Party shall, at the expense of the Indemnifying Party, cooperate with the Indemnifying Party and use its reasonable efforts to make available to the Indemnifying Party all relevant information in its possession or under its control (provided that it does not cause either of them to breach any confidentiality obligations) and shall take such other steps as are, in the reasonable opinion of counsel for the Indemnifying Party, necessary to enable the Indemnifying Party to conduct such defence so long as:
(i) no admission of fault may be made by or on behalf of Buyers or any Buyer's Indemnified Party without the prior written consent of Buyer;
(ii) no admission of fault may be made by or on behalf of Seller or any Seller's the Indemnified Party without unless such settlement (a) requires solely the prior written consent payment of such Person;
money damages by the Indemnifying Party and (iiib) a Representative includes as an unconditional term thereof the release by the claimant or the plaintiff of the Indemnified Party is not obligated to take any measures which, in and the reasonable opinion of its legal counsel, could be prejudicial or unfavourable to the Indemnified Party; and
(iv) persons for whom the Indemnified Party receives, as part is acting or who are acting on behalf of any compromise or settlement, a legally binding and enforceable unconditional release, which is in form and substance satisfactory to the Indemnified Party, acting reasonably, Party from any and all obligations or Liabilities it may have with liability in respect of the proceeding giving rise to the Third Party Claim.
(d) If the Indemnifying Party does not assume the defence of a Third Party Claim because: (i) it is not entitled to under Section 11.8(a); (ii) it has not elected to assume the defence of a Third Party Claim or fails to give notice to the Indemnified Party as specified in Section 11.8(a); or (iii) it is not in compliance, in the opinion of the Indemnified Party acting reasonably, with any of the conditions listed in Section 11.8(b), the Indemnified Party has the right to assume the defence, compromise or settlement of the Third Party Claim and retain counsel in its sole discretion at the Indemnifying Party's sole cost and expense.
(e) Any settlement or other final determination of the Third Party Claim pursuant to Section 11.8(d) will be binding upon the Indemnifying Party. The Indemnifying Party shall, at the sole cost and expense of the Indemnifying Party, cooperate fully with the Indemnified Party and use its reasonable efforts to make available to the Indemnified Party all relevant information in its possession or under its control and take such other steps as are, in the reasonable opinion of counsel for the Indemnified Party, necessary to enable the Indemnified Party to conduct the defence. The Indemnifying Party shall reimburse the Indemnified Party promptly and periodically for Losses incurred defending against the Third Party Claim, and shall remain responsible for any Loss the Indemnified Party may suffer resulting from, arising out of, or relating to, the Third Party Claim to the fullest extent provided in this Article 11.
Appears in 1 contract
Sources: Assignment & Non Competition Agreement (RxElite, Inc.)
Indemnification Procedure for Third Party Claims. (a) The Indemnifying Party may, by written notice given to the Indemnified Party not later than 30 days after receipt of the notice described in Section 11.6, assume control of the defence, compromise or settlement of the Third Party Claim so long as:
(i) the Indemnified Party has at all times the right to fully participate in the defence at its own cost and expense (except the Indemnifying Party must reimburse the Indemnified Party for all Losses incurred by the Indemnified Party in In connection with the investigation and defence of the Third Party Claim prior to the date the Indemnifying Party validly exercised its right to assume the investigation and defence of the Third Party Claim);
(ii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief against the Indemnified Party;
(iii) the Third Party Claim is not made or asserted by a supplier or customer of Seller;
(iv) the Indemnified Party determines in good faith that joint representation would not create a conflict of interest or be inappropriate where the Indemnifying Party is also a party to the Third Party Claim; and
(v) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the judgment of the Indemnified Party likely to have an adverse effect on the Indemnified Party's Tax liability or its continuing business interests.
(b) If the Indemnifying Party assumes the defence any claim of a Third Party Claimfor which a Pfizer Indemnitee or Licensee Indemnitee (either of the foregoing, the Indemnifying Party must:
(i) retain counsel satisfactory to the “Indemnified Party”) seeks indemnification from Licensee or Pfizer, acting reasonably;
as applicable (ii) actively and diligently proceed with the defence“Indemnifying Party”), compromise or settlement of the Third Party Claim at its sole cost and expense;
(iii) pay or reimburse the Indemnified Party for any Taxes payable pursuant to an applicable Governmental Authority under applicable Law notwithstanding that the Third Party Claim is in dispute;
(iv) keep the Indemnified Party fully advised with respect to the status of the Third Party Claim (including providing copies of all relevant documents promptly as they become available and giving access to all records and files relating to the defense of the Third Party Claim) and must arrange for its counsel to inform the Indemnified Party on a regular basis of the status of the Third Party Claim; and
(v) not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim unless consented to in writing by the Indemnified Party (which consent may not be unreasonably or arbitrarily withheld or delayed).
(c) Provided that all the conditions specified in Section 11.8(a) are satisfied and the Indemnifying Party is not in breach of any of its other obligations under this Section 11.8Agreement, the Indemnified Party shall: (a) give the Indemnifying Party prompt written notice of such claim, at the expense section(s) of this Agreement that form the basis of the claim for indemnification, the amount or the estimated amount of damages sought under such claim to the extent then ascertainable and, to the extent practicable, any other material details pertaining thereto; provided, however, that 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, cooperate with the Indemnifying Party and use its reasonable efforts to make available to the Indemnifying Party all relevant information in its possession or under its control (provided that it does not cause either of them to breach any confidentiality obligations) and shall take such other steps as are, in the reasonable opinion of counsel for at the Indemnifying Party’s expense, necessary to enable in connection with the defense and settlement of such claim; and (c) permit the Indemnifying Party to conduct assume control of the defense and settlement of such defence so long as:
(i) no admission of fault claim at the Indemnifying Party’s sole cost and expense; provided, however, that the Indemnifying Party may be made by or on behalf of Buyers or any Buyer's Indemnified Party not settle such claim without the Indemnified Party’s prior written consent consent, which shall not be unreasonably withheld, conditioned or delayed, unless such settlement (x) provides for the payment by the Indemnifying Party of Buyer;
money as sole relief for the claimant (iiother than as contemplated by the Deductible), (y) no admission of fault may be made by or on behalf of Seller or any Seller's Indemnified Party without results in the prior written consent of such Person;
(iii) a Representative full and general release of the Indemnified Party is 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 and does not obligated to take have an effect on any measures which, in the reasonable opinion of its legal counsel, could other claims that may be prejudicial or unfavourable to made against the Indemnified Party; and
(iv) the Indemnified Party receives, as part of any compromise or settlement, a legally binding and enforceable unconditional release, which is in form and substance satisfactory to the Indemnified Party, acting reasonably, from any and all obligations or Liabilities it may have with respect to the Third Party Claim.
(d) . If the Indemnifying Party does not assume control of the defence defense and settlement of a Third such claim, then the Indemnified Party Claim becauseshall control the defense and settlement of such claim with counsel of its selection, at the Indemnifying Party’s expense. 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 and at its own expense. 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, at the Indemnifying Party’s expense, Table of Contents in connection with the defense and settlement of such claim if: (i) it is not entitled to under Section 11.8(a); (ii) it has not elected to assume the defence of a Third Party Claim there are or fails to give notice to the Indemnified Party as specified in Section 11.8(a); or (iii) it is not in compliance, in the opinion of the Indemnified Party acting reasonably, with any of the conditions listed in Section 11.8(b), the Indemnified Party has the right to assume the defence, compromise or settlement of the Third Party Claim and retain counsel in its sole discretion at the Indemnifying Party's sole cost and expense.
(e) Any settlement or other final determination of the Third Party Claim pursuant to Section 11.8(d) will may be binding upon the Indemnifying Party. The Indemnifying Party shall, at the sole cost and expense of the Indemnifying Party, cooperate fully with the Indemnified Party and use its reasonable efforts to make legal defenses available to the Indemnified Party all relevant information in its possession that are different from or under its control and take such other steps as are, additional to those available to the Indemnifying Party; or (ii) in the reasonable opinion of counsel for to the Indemnified Party, necessary to enable a conflict or potential conflict exists between the Indemnified Party to conduct the defence. The and Indemnifying Party shall reimburse that would make such separate representation advisable. In the event that the Indemnified Party promptly controls the defense and periodically for Losses incurred defending against the Third Party Claimsettlement of such claim, and shall remain responsible for any Loss the Indemnified Party may suffer resulting fromnot settle such claim without the Indemnifying Party’s prior written consent, arising out ofwhich shall not be unreasonably withheld, conditioned or relating to, the Third Party Claim to the fullest extent provided in this Article 11delayed.
Appears in 1 contract
Sources: License Agreement (ARYA Sciences Acquisition Corp II)
Indemnification Procedure for Third Party Claims. (a) The Indemnifying In the event that any claim or demand for which an Indemnitor may be liable to an Indemnitee hereunder is asserted by a third party (a “Third Party mayClaim”), by written the Indemnitee shall promptly notify the Indemnitor in writing of such Third Party Claim (such notice, a “Claim Notice”), provided that the failure to give such notice given will not affect the indemnification obligations set forth herein except to the Indemnified Party not later than 30 days after receipt of extent (and only to the notice described extent) that the Indemnitor is materially prejudiced by such failure. The Claim Notice shall state in Section 11.6, assume control of reasonable detail the defence, compromise or settlement nature and basis of the Third Party Claim so long as:
(i) and the Indemnified Party has at all times amount thereof, to the right to fully participate in extent known, as well as the defence at its own cost and expense (except the Indemnifying Party must reimburse the Indemnified Party basis for all Losses incurred by the Indemnified Party in connection indemnification sought. The Indemnitee shall enclose with the investigation and defence Claim Notice a copy of the Third Party Claim prior all relevant papers served with respect to the date the Indemnifying Party validly exercised its right to assume the investigation and defence of the such Third Party Claim);
(ii) the Third Party Claim involves only money damages , if any, and does not seek an injunction or any other equitable relief against the Indemnified Party;
(iii) the Third Party Claim is not made or asserted by a supplier or customer of Seller;
(iv) the Indemnified Party determines in good faith that joint representation would not create a conflict of interest or be inappropriate where the Indemnifying Party is also a party to the documents evidencing such Third Party Claim; and
(v) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the judgment of the Indemnified Party likely to have an adverse effect on the Indemnified Party's Tax liability or its continuing business interests.
(b) If The Indemnitor shall have 45 days from the Indemnifying Party assumes date on which the defence Indemnitor received the Claim Notice to notify the Indemnitee that the Indemnitor desires to assume the defense or prosecution of a Third Party Claim, the Indemnifying Party must:
(i) retain counsel satisfactory to the Indemnified Party, acting reasonably;
(ii) actively and diligently proceed with the defence, compromise or settlement of the such Third Party Claim and any litigation resulting therefrom with counsel of its choice and at its sole cost and expense;
. If the Indemnitor assumes the defense of such claim in accordance herewith: (iiii) pay or reimburse the Indemnified Party for any Taxes payable to an applicable Governmental Authority under applicable Law notwithstanding that Indemnitee may retain separate co-counsel at its sole cost and expense and participate in the Third Party Claim is in dispute;
(iv) keep the Indemnified Party fully advised with respect to the status defense of the such Third Party Claim (including providing copies provided, however, that if, at the advice of all relevant documents promptly as they become available and giving access to all records and files relating outside counsel to the defense Indemnitee, there exists a material conflict of interest which would make it inappropriate for the same counsel to represent both the Indemnitee and the Indemnitor, the Indemnitee shall be entitled to retain separate counsel of its choosing at the expense of the Indemnitor; provided that the Indemnitor shall under no circumstances be obligated to pay or reimburse all Indemnitees in respect of Third Party ClaimClaims or series of related Third Party Claims for the fees or expenses of more than one separate counsel), but the Indemnitor shall control the investigation, defense and settlement thereof; (ii) and must arrange for its counsel the Indemnitee shall not file any papers or consent to inform the Indemnified entry of any judgment or enter into any settlement with respect to such Third Party on a regular basis Claim without the prior written consent of the status of Indemnitor; and (iii) the Third Party Claim; and
(v) Indemnitor shall not consent to the entry of any judgment or enter into any settlement with respect to the such Third Party Claim without the prior written consent of the Indemnitee (A) unless such settlement, compromise or judgment includes an unconditional written release by the claimant or plaintiff of the Indemnitee from all liability in respect of such Third Party Claim, (B) if the settlement imposes equitable remedies or material obligations on the Indemnitee other than financial obligations for which such Indemnitee will be indemnified hereunder (excluding amounts not indemnifiable pursuant to Section 11.6(a)), or (C) if the result is to admit civil or criminal liability or culpability on the part of the Indemnitee or that gives rise to criminal liability with respect to 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. If 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 in writing by without the Indemnified Party (which consent may not be unreasonably or arbitrarily withheld or delayed)Indemnitor’s prior written consent.
(c) Provided that all If the conditions specified in Section 11.8(a) are satisfied and Indemnitor does not assume the Indemnifying defense of such Third Party is not in breach Claim within 45 days of any receipt of its other obligations under this Section 11.8the Claim Notice, the Indemnified Party shallIndemnitee will be entitled to assume such defense, at its sole cost and expense (or, if the Indemnitee incurs a Loss with respect to the matter in question for which the Indemnitee is entitled to indemnification pursuant to Section 11.2 or 11.3, as applicable, at the expense of the Indemnifying PartyIndemnitor), cooperate with the Indemnifying Party and use its reasonable efforts upon delivery of notice to make available such effect to the Indemnifying Party all relevant information in its possession or under its control (provided that it does not cause either of them to breach any confidentiality obligations) and shall take such other steps as areIndemnitor; provided, in however, that: the reasonable opinion of counsel for the Indemnifying Party, necessary to enable the Indemnifying Party to conduct such defence so long as:
Indemnitor (i) no admission of fault may be made by or on behalf of Buyers or any Buyer's Indemnified Party without the prior written consent of Buyer;
(ii) no admission of fault may be made by or on behalf of Seller or any Seller's Indemnified Party without the prior written consent of such Person;
(iii) a Representative of the Indemnified Party is not obligated to take any measures which, in the reasonable opinion of its legal counsel, could be prejudicial or unfavourable to the Indemnified Party; and
(iv) the Indemnified Party receives, as part of any compromise or settlement, a legally binding and enforceable unconditional release, which is in form and substance satisfactory to the Indemnified Party, acting reasonably, from any and all obligations or Liabilities it may shall have with respect to the Third Party Claim.
(d) If the Indemnifying Party does not assume the defence of a Third Party Claim because: (i) it is not entitled to under Section 11.8(a); (ii) it has not elected to assume the defence of a Third Party Claim or fails to give notice to the Indemnified Party as specified in Section 11.8(a); or (iii) it is not in compliance, in the opinion of the Indemnified Party acting reasonably, with any of the conditions listed in Section 11.8(b), the Indemnified Party has the right to assume participate in the defence, compromise or settlement defense of the Third Party Claim and retain counsel in at its sole discretion at the Indemnifying Party's sole cost and expense.
, but the Indemnitee shall control the investigation, defense and settlement thereof and (eii) Any settlement or other final determination may at any time thereafter assume defense of the Third Party Claim, 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 defense of the Third Party Claim. If the Indemnitee assumes the defense of such Third Party Claim pursuant to this Section 11.8(d) will be binding upon the Indemnifying Party. The Indemnifying Party shall11.4, at the sole cost it may defend such claim in such manner as it may deem appropriate and expense may settle such claim on such terms as it may deem appropriate; provided, however, that in settling any action in respect of the Indemnifying Party, cooperate fully with the Indemnified Party and use its reasonable efforts to make available to the Indemnified Party all relevant information in its possession or which indemnification is payable under its control and take such other steps as are, in the reasonable opinion of counsel for the Indemnified Party, necessary to enable the Indemnified Party to conduct the defence. The Indemnifying Party shall reimburse the Indemnified Party promptly and periodically for Losses incurred defending against the Third Party Claim, and shall remain responsible for any Loss the Indemnified Party may suffer resulting from, arising out of, or relating to, the Third Party Claim to the fullest extent provided in this Article 11XI, it shall act reasonably and in good faith.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (M & F Worldwide Corp)
Indemnification Procedure for Third Party Claims. If any party (athe "Indemnified Party") receives written notice of the commencement of any action or proceeding or the assertion of any claim by a third party or the imposition of any penalty or assessment for which indemnity may be sought under this Article V (a "Third Party Claim"), and such Indemnified Party intends to seek indemnity pursuant to this Article V, the Indemnified Party shall promptly provide the other party (the "Indemnifying Party") with notice of such Third Party Claim. The Indemnifying Party mayshall be entitled to participate in or, by written notice given to the Indemnified Party not later than 30 days after receipt of the notice described in Section 11.6at its option, assume control of the defencedefense, compromise appeal, or settlement of the such Third Party Claim so long as:
(i) the Indemnified Party has at all times the right to fully participate in the defence at its own cost and expense (except Claim. Such defense or settlement shall be conducted through counsel selected by the Indemnifying Party must reimburse the Indemnified Party for all Losses incurred and approved by the Indemnified Party in connection with the investigation and defence of the Third Party Claim prior to the date the Indemnifying Party validly exercised its right to assume the investigation and defence of the Third Party Claim);
(ii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief against the Indemnified Party;
(iii) the Third Party Claim is not made or asserted by a supplier or customer of Seller;
(iv) the Indemnified Party determines in good faith that joint representation would not create a conflict of interest or be inappropriate where the Indemnifying Party is also a party to the Third Party Claim; and
(v) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the judgment of the Indemnified Party likely to have an adverse effect on the Indemnified Party's Tax liability or its continuing business interests.
(b) If the Indemnifying Party assumes the defence of a Third Party Claim, the Indemnifying Party must:
(i) retain counsel satisfactory to the Indemnified Party, acting reasonably;
(ii) actively which approval shall not be unreasonably withheld or delayed, and diligently proceed with the defence, compromise or settlement of the Third Party Claim at its sole cost and expense;
(iii) pay or reimburse the Indemnified Party for any Taxes payable to an applicable Governmental Authority under applicable Law notwithstanding that the Third Party Claim is in dispute;
(iv) keep the Indemnified Party shall fully advised with respect to the status of the Third Party Claim (including providing copies of all relevant documents promptly as they become available and giving access to all records and files relating to the defense of the Third Party Claim) and must arrange for its counsel to inform the Indemnified Party on a regular basis of the status of the Third Party Claim; and
(v) not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim unless consented to in writing by the Indemnified Party (which consent may not be unreasonably or arbitrarily withheld or delayed).
(c) Provided that all the conditions specified in Section 11.8(a) are satisfied and the Indemnifying Party is not in breach of any of its other obligations under this Section 11.8, the Indemnified Party shall, at the expense of the Indemnifying Party, cooperate with the Indemnifying Party and use its reasonable efforts to make available to in connection therewith. In the event that the Indemnifying Party all relevant information in its possession fails to assume the defense or under its control (provided that it does not cause either of them to breach any confidentiality obligations) and shall take such other steps as are, in the reasonable opinion of counsel for the Indemnifying Party, necessary to enable the Indemnifying Party to conduct such defence so long as:
(i) no admission of fault may be made by or on behalf of Buyers or any Buyer's Indemnified Party without the prior written consent of Buyer;
(ii) no admission of fault may be made by or on behalf of Seller or any Seller's Indemnified Party without the prior written consent of such Person;
(iii) a Representative of the Indemnified Party is not obligated to take any measures which, in the reasonable opinion of its legal counsel, could be prejudicial or unfavourable to the Indemnified Party; and
(iv) the Indemnified Party receives, as part settlement of any compromise or settlement, a legally binding and enforceable unconditional release, which is in form and substance satisfactory to Third Party Claim within 20 days after receipt of notice thereof from the Indemnified Party, acting reasonablythe Indemnified Party shall have the right to undertake the defense, from any and all obligations appeal or Liabilities it may have with respect to the Third Party Claim.
(d) If the Indemnifying Party does not assume the defence settlement of a such Third Party Claim because: (i) it is not entitled to under Section 11.8(a); (ii) it has not elected to assume the defence of a Third Party Claim or fails to give notice to the Indemnified Party as specified in Section 11.8(a); or (iii) it is not in compliance, in the opinion of the Indemnified Party acting reasonably, with any of the conditions listed in Section 11.8(b), the Indemnified Party has the right to assume the defence, compromise or settlement of the Third Party Claim and retain counsel in its sole discretion at the Indemnifying Party's sole cost expense and expense.
(e) Any settlement or other final determination for the account of the Third Party Claim pursuant to Section 11.8(d) will be binding upon the Indemnifying Party. The Indemnifying Party shall, at shall not settle any Third Party Claim the sole cost and expense defense or settlement of the Indemnifying Party, cooperate fully with the Indemnified Party and use its reasonable efforts to make available to the Indemnified Party all relevant information in its possession or under its control and take such other steps as are, in the reasonable opinion of counsel for which is controlled by it without the Indemnified Party's prior written consent (which consent shall not be unreasonably withheld or delayed), necessary to enable unless the terms of such settlement or compromise release such Indemnified Party from any and all liability with respect to conduct the defence. The Indemnifying Party shall reimburse the Indemnified Party promptly and periodically for Losses incurred defending against the such Third Party Claim, and shall remain responsible for any Loss the Indemnified Party may suffer resulting from, arising out of, or relating to, the Third Party Claim to the fullest extent provided in this Article 11.
Appears in 1 contract
Indemnification Procedure for Third Party Claims. Any Action by an Indemnified Party on account of a Loss which does not result from a Third Party Claim (aeach, a "Direct Claim") The Indemnifying Party may, shall be asserted by written notice given to the Indemnified Party giving the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than 30 days after receipt of the notice described in Section 11.6, assume control of the defence, compromise or settlement of the Third Party Claim so long as:
(i) the Indemnified Party has at all times the right becomes aware of such Direct Claim. The failure to fully participate in the defence at its own cost and expense (except give such prompt written notice shall not, however, relieve the Indemnifying Party must reimburse of its indemnification obligations, except and only to the Indemnified extent that the Indemnifying Party for all Losses incurred forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Direct Claim in connection with reasonable detail, shall include copies of all material written evidence thereof and shall indicate the investigation and defence estimated amount, if reasonably practicable, of the Third Party Claim prior to the date the Indemnifying Party validly exercised its right to assume the investigation and defence of the Third Party Claim);
(ii) the Third Party Claim involves only money damages and does not seek an injunction Loss that has been or other equitable relief against may be sustained by the Indemnified Party;
(iii) the Third . The Indemnifying Party Claim is not made or asserted by a supplier or customer shall have 30 days after its receipt of Seller;
(iv) the such notice to respond in writing to such Direct Claim. The Indemnified Party determines in good faith that joint representation would not create a conflict of interest or be inappropriate where the Indemnifying Party is also a party to the Third Party Claim; and
(v) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the judgment of the Indemnified Party likely to have an adverse effect on the Indemnified Party's Tax liability or its continuing business interests.
(b) If the Indemnifying Party assumes the defence of a Third Party Claim, the Indemnifying Party must:
(i) retain counsel satisfactory to the Indemnified Party, acting reasonably;
(ii) actively and diligently proceed with the defence, compromise or settlement of the Third Party Claim at its sole cost and expense;
(iii) pay or reimburse the Indemnified Party for any Taxes payable to an applicable Governmental Authority under applicable Law notwithstanding that the Third Party Claim is in dispute;
(iv) keep the Indemnified Party fully advised with respect to the status of the Third Party Claim (including providing copies of all relevant documents promptly as they become available and giving access to all records and files relating to the defense of the Third Party Claim) and must arrange for its counsel to inform the Indemnified Party on a regular basis of the status of the Third Party Claim; and
(v) not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim unless consented to in writing by the Indemnified Party (which consent may not be unreasonably or arbitrarily withheld or delayed).
(c) Provided that all the conditions specified in Section 11.8(a) are satisfied and the Indemnifying Party is not in breach of any of its other obligations under this Section 11.8, the Indemnified Party shall, at the expense of the Indemnifying Party, cooperate with shall allow the Indemnifying Party and use its reasonable efforts professional advisors to make available investigate the matter or circumstance alleged to give rise to the Direct Claim, and whether and to what extent any amount is payable in respect of the Direct Claim, and the Indemnified Party shall assist the Indemnifying Party's investigation by giving such information and assistance (including access to the Corporation's premises and personnel and the right to examine and copy any accounts, documents or records) as the Indemnifying Party all relevant information in its possession or under its control (provided that it does not cause either of them to breach any confidentiality obligations) and shall take such other steps as are, in the reasonable opinion of counsel for the Indemnifying Party, necessary to enable the Indemnifying Party to conduct such defence so long as:
(i) no admission of fault may be made by or on behalf of Buyers or any Buyer's Indemnified Party without the prior written consent of Buyer;
(ii) no admission of fault may be made by or on behalf of Seller or any Seller's Indemnified Party without the prior written consent of such Person;
(iii) a Representative of the Indemnified Party is not obligated to take any measures which, in the reasonable opinion of its legal counsel, could be prejudicial or unfavourable to the Indemnified Party; and
(iv) the Indemnified Party receives, as part of any compromise or settlement, a legally binding and enforceable unconditional release, which is in form and substance satisfactory to the Indemnified Party, acting reasonably, from any and all obligations or Liabilities it professional advisors may have with respect to the Third Party Claim.
(d) reasonably request. If the Indemnifying Party does not assume so respond within such 30 day period, the defence of a Third Indemnifying Party Claim because: (i) it is not entitled shall be deemed to under Section 11.8(a); (ii) it has not elected have rejected such claim, in which case the Indemnified Party shall be free to assume the defence of a Third Party Claim or fails to give notice pursue such remedies as may be to the Indemnified Party as specified in Section 11.8(a); or (iii) it is not in compliance, in on the opinion of the Indemnified Party acting reasonably, with any of the conditions listed in Section 11.8(b), the Indemnified Party has the right to assume the defence, compromise or settlement of the Third Party Claim terms and retain counsel in its sole discretion at the Indemnifying Party's sole cost and expense.
(e) Any settlement or other final determination of the Third Party Claim pursuant to Section 11.8(d) will be binding upon the Indemnifying Party. The Indemnifying Party shall, at the sole cost and expense of the Indemnifying Party, cooperate fully with the Indemnified Party and use its reasonable efforts to make available subject to the Indemnified Party all relevant information in its possession or under its control and take such other steps as are, in the reasonable opinion provisions of counsel for the Indemnified Party, necessary to enable the Indemnified Party to conduct the defence. The Indemnifying Party shall reimburse the Indemnified Party promptly and periodically for Losses incurred defending against the Third Party Claim, and shall remain responsible for any Loss the Indemnified Party may suffer resulting from, arising out of, or relating to, the Third Party Claim to the fullest extent provided in this Article 11Agreement.
Appears in 1 contract
Sources: Acquisition Agreement
Indemnification Procedure for Third Party Claims. ◦ In the event that subsequent to the Closing any Person entitled to indemnification under this Agreement (aan “Indemnified Party”) asserts a claim for indemnification or receives notice of the assertion of any 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 promptly after learning of such claim. The Indemnifying Party mayshall have the right, by upon written notice given to the Indemnified Party not later than 30 (the “Defense Notice”) within thirty (30) days after receipt from the Indemnified Party of notice of such claim, to conduct at his, her or its expense the defense against such claim in his, her or its own name, or if necessary in the name of the notice described in Section 11.6Indemnified Party, with counsel reasonably satisfactory to the Indemnified Party. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume control of the defence, compromise or settlement of the a Third Party Claim so long as:
(i) and shall pay the Indemnified Party has at all times the right to fully participate in the defence at its own cost reasonable fees and expense (except the Indemnifying Party must reimburse the Indemnified Party for all Losses incurred expenses of counsel retained by the Indemnified Party in connection with the investigation and defence of the Third Party Claim prior to the date the Indemnifying Party validly exercised its right to assume the investigation and defence of the Third Party Claim);
if (iii) the Third Party Claim involves only money damages and does not seek an injunction seeks injunctive or other equitable relief against relief, (ii) the Indemnified Party;
(iii) , in the claim notice to the Indemnifying Party, states that, based on advice of counsel, he, she or it believes that his, her or its interests in the Third Party Claim are, or can reasonably be expected to be, adverse to the interests of the Indemnifying Party, or (iii) such Indemnifying Party is not made or asserted by a supplier or customer of Seller;
(iv) unable to provide the Indemnified Party determines in good faith with reasonable assurance of his, her or its ability to pay the expenses of the defense against such Third Party Claim. ◦ In the event that joint representation would not create a conflict of interest or be inappropriate where the Indemnifying Party is also a party shall fail to the Third Party Claim; and
(v) settlement ofgive such notice described in Section 7.3(a), he, she or an adverse judgment with respect to, the Third Party Claim is not, in the judgment of the Indemnified Party likely it shall be deemed to have an adverse effect on the Indemnified Party's Tax liability or its continuing business interests.
(b) If the Indemnifying Party assumes the defence of a Third Party Claim, the Indemnifying Party must:
(i) retain counsel satisfactory elected not to the Indemnified Party, acting reasonably;
(ii) actively and diligently proceed with the defence, compromise or settlement of the Third Party Claim at its sole cost and expense;
(iii) pay or reimburse the Indemnified Party for any Taxes payable to an applicable Governmental Authority under applicable Law notwithstanding that the Third Party Claim is in dispute;
(iv) keep the Indemnified Party fully advised with respect to the status of the Third Party Claim (including providing copies of all relevant documents promptly as they become available and giving access to all records and files relating to conduct the defense of the Third Party Claim) subject claim, and must arrange for its counsel to inform in such event the Indemnified Party on a regular basis shall have the right to conduct such defense with counsel of its own choosing at the expense of the status Indemnifying Party and to compromise and settle the claim, subject to the prior consent of the Third Party Claim; and
(v) not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim unless consented to in writing by the Indemnified Party (Indemnifying Party, which consent may shall not be unreasonably or arbitrarily withheld or delayed).
(c) Provided . ◦ In the event that all the conditions specified in Section 11.8(a) are satisfied and the Indemnifying Party is not in breach does elect to conduct the defense of any of its other obligations under this Section 11.8the subject claim, the Indemnified Party shallwill cooperate with and make available to the Indemnifying Party such assistance and materials as may be reasonably requested by he, she or it, all at the expense of the Indemnifying Party, cooperate with and the Indemnifying Indemnified Party and use shall have the right at his, her or its reasonable efforts expense to make available to the Indemnifying Party all relevant information in its possession or under its control (provided that it does not cause either of them to breach any confidentiality obligations) and shall take such other steps as are, participate in the reasonable opinion defense assisted by counsel of counsel for his, her or its own choosing and the Indemnifying Party, necessary to enable the Indemnifying Party to conduct such defence so long as:
(i) no admission of fault may be made by or on behalf of Buyers or any Buyer's Indemnified Party without shall have the right to compromise and settle the claim only with the prior written consent of Buyer;
(ii) no admission of fault may the Indemnifying Party, which consent shall not be made by unreasonably withheld or on behalf of Seller or any Seller's Indemnified Party without 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 Person;
claim, if pursuant to or as a result of such settlement or cessation, (iiii) a Representative 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 obligated entitled to take any measures which, in the reasonable opinion of its legal counsel, could be prejudicial or unfavourable indemnification hereunder. If a firm decision is made to the Indemnified Party; and
(iv) the Indemnified Party receives, as part of any compromise or settlement, settle a legally binding and enforceable unconditional release, which is in form and substance satisfactory to the Indemnified Party, acting reasonably, from any and all obligations or Liabilities it may have with respect to the Third Party Claim.
(d) If , which offer the Indemnifying Party does not assume is permitted to settle under this Section 7.2(c), and the defence of a Third Indemnifying Party Claim because: (i) it is not entitled desires to under Section 11.8(a); (ii) it has not elected accept and agree to assume such offer, the defence of a Third Indemnifying Party Claim or fails to will give written notice to the Indemnified Party as specified in Section 11.8(a); or (iii) it is not in compliance, in the opinion of to that effect. If the Indemnified Party acting reasonablyfails to consent to such firm offer within thirty (30) days after his, with any her or its receipt of the conditions listed in Section 11.8(b)such notice, the Indemnified Party has the right may continue to assume the defence, compromise contest or settlement of the defend such Third Party Claim and retain counsel and, in its sole discretion at such event, the maximum liability of the Indemnifying Party's sole cost and expense.
(e) Any settlement or other final determination of the Party as to such Third Party Claim pursuant to Section 11.8(dwill not exceed the amount of such settlement offer, plus costs and expenses paid or incurred by the Indemnified Party through the end of such thirty (30) will day period. ◦ Any judgment entered or settlement agreed upon in the manner provided herein shall be binding upon the Indemnifying Party. The Indemnifying Party shall, at the sole cost and expense of the Indemnifying Party, cooperate fully shall conclusively be deemed to be an obligation with respect to which the Indemnified Party and use its reasonable efforts is entitled to make available to the Indemnified Party all relevant information in its possession or under its control and take such other steps as are, in the reasonable opinion of counsel for the Indemnified Party, necessary to enable the Indemnified Party to conduct the defence. The Indemnifying Party shall reimburse the Indemnified Party promptly and periodically for Losses incurred defending against the Third Party Claim, and shall remain responsible for any Loss the Indemnified Party may suffer resulting from, arising out of, or relating to, the Third Party Claim to the fullest extent provided in this Article 11prompt indemnification hereunder.
Appears in 1 contract
Indemnification Procedure for Third Party Claims. (a) In the event that, subsequent to the Closing, an Indemnified Party receives notice of the assertion of a Third Party Claim against such Indemnified Party, the Indemnified Party shall give written notice thereof, together with a statement of any available information regarding such claim to the Indemnifying Party within five (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 and defend such claim). Such written notice shall describe in reasonable detail the facts constituting the basis for such Third Party Claim and the amount of the potential Losses, in each case to the extent known. The failure of the Indemnified Party to give reasonably prompt notice of any Third Party Claim shall not release, waive or otherwise affect the Indemnifying Party’s obligations with respect thereto except to the extent that the Indemnifying Party can demonstrate that such failure has materially and irreparably prejudiced the defense of any such Third Party Claim. The Indemnifying Party may, by shall have the right upon written notice given to the Indemnified Party not later than 30 within ten (10) 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 required in the name of the notice described in Section 11.6Indemnified Party. If the Indemnifying Party elects not to assume control, assume the Indemnified Party shall retain control of the defence, compromise or settlement of the such Third Party Claim so long as:and the Indemnifying Party will be liable for the fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof. The Party not controlling such Third Party Claim shall cooperate with and make available to the controlling Party such assistance and materials as may be reasonably requested by it (including copies of any summons, complaint or other pleading which may have been served on such Party and any written claim, demand, invoice, billing or other document evidencing or asserting the same), and shall have the right at its expense to participate in the defense assisted by counsel of its own choosing. The Party controlling such Third Party Claim shall keep the non-controlling Party advised of the status of such Third Party Claim and fees incurred with respect thereto, on at least a monthly basis, and shall consider in good faith recommendations made by the non-controlling Party with respect thereto.
(b) If an Indemnifying Party assumes the defense of a Third Party Claim in accordance herewith: (i) the Indemnified Party has at all times the right to fully participate in the defence at its own cost and expense (except the Indemnifying Party must reimburse the Indemnified Party for all Losses incurred by the Indemnified Party in connection with the investigation and defence of the Third Party Claim prior to the date the Indemnifying Party validly exercised its right to assume the investigation and defence of the Third Party Claim);
(ii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief against the Indemnified Party;
(iii) the Third Party Claim is not made or asserted by a supplier or customer of Seller;
(iv) the Indemnified Party determines in good faith that joint representation would not create a conflict of interest or be inappropriate where the Indemnifying Party is also a party to the Third Party Claim; and
(v) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the judgment of the Indemnified Party likely to have an adverse effect on the Indemnified Party's Tax liability or its continuing business interests.
(b) If the Indemnifying Party assumes the defence of a Third Party Claim, the Indemnifying Party must:
(i) may retain counsel satisfactory to the Indemnified Party, acting reasonably;
(ii) actively and diligently proceed with the defence, compromise or settlement of the Third Party Claim separate co‑counsel at its sole cost and expense;
expense and participate in the defense of such Third Party Claim, but the Indemnifying Party shall control the investigation, defense and settlement thereof; (iiiii) pay or reimburse the Indemnified Party for shall not file any Taxes payable to an applicable Governmental Authority under applicable Law notwithstanding that the Third Party Claim is in dispute;
(iv) keep the Indemnified Party fully advised with respect to the status of the Third Party Claim (including providing copies of all relevant documents promptly as they become available and giving access to all records and files relating to the defense of the Third Party Claim) and must arrange for its counsel to inform the Indemnified Party on a regular basis of the status of the Third Party Claim; and
(v) not papers or consent to the entry of any judgment or enter into any settlement with respect to the such Third Party Claim unless consented to in writing by the Indemnified Party (which consent may not be unreasonably or arbitrarily withheld or delayed).
(c) Provided that all the conditions specified in Section 11.8(a) are satisfied and the Indemnifying Party is not in breach of any of its other obligations under this Section 11.8, the Indemnified Party shall, at the expense of the Indemnifying Party, cooperate with the Indemnifying Party and use its reasonable efforts to make available to the Indemnifying Party all relevant information in its possession or under its control (provided that it does not cause either of them to breach any confidentiality obligations) and shall take such other steps as are, in the reasonable opinion of counsel for the Indemnifying Party, necessary to enable the Indemnifying Party to conduct such defence so long as:
(i) no admission of fault may be made by or on behalf of Buyers or any Buyer's Indemnified Party without the prior written consent of Buyer;
the Indemnifying Party; and (iiiii) no admission the Indemnifying Party shall not consent to the entry of fault may be made by any judgment or on behalf of Seller enter into any settlement or any Seller's Indemnified compromise with respect to such Third Party Claim without the prior written consent of the Indemnified Party unless the judgment or settlement provides (a) solely for the payment of money by the Indemnifying Party that will be paid or reimbursed concurrent with the execution and delivery of such Person;
judgment, settlement or compromise, (iiib) a Representative that the Indemnified Party receives an unconditional release from all liability with respect to such Third Party Claim and (c) no obligation of the Indemnified Party is not obligated to take or any measures which, in the reasonable opinion of its legal counsel, could be prejudicial or unfavourable Affiliates to the Indemnified Party; and
(iv) the Indemnified Party receives, as part of any compromise or settlement, a legally binding and enforceable unconditional release, which is in form and substance satisfactory to the Indemnified Party, acting reasonably, from any and all perform obligations or Liabilities it may have with respect to admit liability. In the Third Party Claim.
(d) If event that the Indemnifying Party does not assume agree in writing to accept the defence defense of a Third Party Claim, then the Indemnified Party shall have the right to defend against, negotiate, settle or otherwise deal with the Third Party Claim becausein such manner as the Indemnified party deems appropriate, in its sole discretion and the Indemnified Party shall be entitled to indemnification therefor to the extent provided for by this Article VII.
(c) If: (i) it a Third Party Claim relates to or arises in connection with an Action, the object of which is not entitled to under Section 11.8(a)obtain an injunction, restraining order, declaratory relief or other non-monetary relief (including criminal penalties) against the Indemnified Party; (ii) it has not elected to assume the defence of a Third Party Claim or fails to give notice to the Indemnified Party as specified reasonably concludes that, in Section 11.8(a)light of actual or potential conflict of interest, it would be inappropriate for legal counsel selected by the Indemnifying Party to represent the Indemnified Party; or (iii) it is not in compliance, in the opinion of the Indemnified Party acting reasonably, with any of the conditions listed in Section 11.8(b), the Indemnified Party has the right to assume the defence, compromise or settlement of the Third Party Claim and retain counsel in its sole discretion at the Indemnifying Party's sole cost and expense.
(e) Any settlement or other final reasonably concludes that an adverse determination of the Third Party Claim pursuant to Section 11.8(dwould constitute a Company Material Adverse Effect, then (iv) will be binding upon the Indemnifying Party. The Indemnifying Party shallshall have the right to retain its own counsel and control the defense or settlement of any such Third Party Claim and its reasonable legal fees and costs and expenses of defending such Third Party Claim shall be included as Losses to which the Indemnified Party is entitled to be indemnified; provided that, at under the sole cost and expense circumstances described in this Section 7.4(c), the Indemnified Party shall not compromise or settle any such Third Party Claim without the prior written consent of the Indemnifying Party, cooperate fully with the Indemnified Party and use its reasonable efforts to make available to the Indemnified Party all relevant information in its possession which consent shall not be unreasonably withheld or under its control and take such other steps as are, in the reasonable opinion of counsel for the Indemnified Party, necessary to enable the Indemnified Party to conduct the defence. The Indemnifying Party shall reimburse the Indemnified Party promptly and periodically for Losses incurred defending against the Third Party Claim, and shall remain responsible for any Loss the Indemnified Party may suffer resulting from, arising out of, or relating to, the Third Party Claim to the fullest extent provided in this Article 11delayed.
Appears in 1 contract
Sources: Stock Purchase Agreement (Gibraltar Industries, Inc.)
Indemnification Procedure for Third Party Claims. In the event that subsequent to the Closing any Person entitled to indemnification under this Agreement (aan "Indemnified Party") The receives notice of the assertion of any claim, issuance of any order or the commencement of any action or proceeding by any Person who is not a party to this Agreement or an Affiliate of a party, including, without limitation, any 45 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 mayParty"), by written notice given to the Indemnified Party not later than 30 days after receipt shall give written notice thereof together with a statement of the notice described in Section 11.6, assume control of the defence, compromise or settlement of the Third Party Claim so long as:
(i) the Indemnified Party has at all times the right any available information regarding such claim to fully participate in the defence at its own cost and expense (except the Indemnifying Party must reimburse the Indemnified Party for all Losses incurred by the Indemnified Party in connection with the investigation and defence within thirty (30) days after learning of the Third Party Claim prior to the date the Indemnifying Party validly exercised its right to assume the investigation and defence of the Third Party Claim);
such claim (ii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief against the Indemnified Party;
(iii) the Third Party Claim is not made or asserted by a supplier or customer of Seller;
(iv) the Indemnified Party determines in good faith that joint representation would not create a conflict of interest or within such shorter time as may be inappropriate where the Indemnifying Party is also a party to the Third Party Claim; and
(v) settlement of, or an adverse judgment with respect to, the Third Party Claim is notnecessary, in the judgment of the Indemnified Party likely to have an adverse effect on the Indemnified Party's Tax liability or its continuing business interests.
(b) If reasonable judgment, to give the Indemnifying Party assumes the defence of a Third Party Claim, the reasonable opportunity to respond to and defend such claim). The Indemnifying Party must:
(i) retain counsel satisfactory to shall have the Indemnified Partyright, acting reasonably;
(ii) actively and diligently proceed with the defence, compromise or settlement of the Third Party Claim at its sole cost and expense;
(iii) pay or reimburse the Indemnified Party for any Taxes payable to an applicable Governmental Authority under applicable Law notwithstanding that the Third Party Claim is in dispute;
(iv) keep the Indemnified Party fully advised with respect to the status of the Third Party Claim (including providing copies of all relevant documents promptly as they become available and giving access to all records and files relating to the defense of the Third Party Claim) and must arrange for its counsel to inform the Indemnified Party on a regular basis of the status of the Third Party Claim; and
(v) not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim unless consented to in writing by the Indemnified Party (which consent may not be unreasonably or arbitrarily withheld or delayed).
(c) Provided that all the conditions specified in Section 11.8(a) are satisfied and the Indemnifying Party is not in breach of any of its other obligations under this Section 11.8, the Indemnified Party shall, at the expense of the Indemnifying Party, cooperate with the Indemnifying Party and use its reasonable efforts to make available to the Indemnifying Party all relevant information in its possession or under its control (provided that it does not cause either of them to breach any confidentiality obligations) and shall take such other steps as are, in the reasonable opinion of counsel for the Indemnifying Party, necessary to enable the Indemnifying Party to conduct such defence so long as:
(i) no admission of fault may be made by or on behalf of Buyers or any Buyer's Indemnified Party without the prior upon written consent of Buyer;
(ii) no admission of fault may be made by or on behalf of Seller or any Seller's Indemnified Party without the prior written consent of such Person;
(iii) a Representative of the Indemnified Party is not obligated to take any measures which, in the reasonable opinion of its legal counsel, could be prejudicial or unfavourable to the Indemnified Party; and
(iv) the Indemnified Party receives, as part of any compromise or settlement, a legally binding and enforceable unconditional release, which is in form and substance satisfactory to the Indemnified Party, acting reasonably, from any and all obligations or Liabilities it may have with respect to the Third Party Claim.
(d) If the Indemnifying Party does not assume the defence of a Third Party Claim because: (i) it is not entitled to under Section 11.8(a); (ii) it has not elected to assume the defence of a Third Party Claim or fails to give notice to the Indemnified Party as specified (the "Defense Notice") within ten days (10) after receipt from the Indemnified Party of notice of such claim, to conduct at its expense the defense against such claim in Section 11.8(a); its own name, or (iii) it is not in compliance, if necessary in the opinion name of the Indemnified Party acting reasonablyParty; provided, with any of the conditions listed in Section 11.8(b)however, that the Indemnified Party has shall have the right to assume approve the defence, compromise or settlement of the Third Party Claim and retain defense counsel in its sole discretion at the Indemnifying Party's sole cost and expense.
(e) Any settlement or other final determination of the Third Party Claim pursuant to Section 11.8(d) will be binding upon the Indemnifying Party. The Indemnifying Party shall, at the sole cost and expense of selected by the Indemnifying Party, cooperate fully with which approval shall not be unreasonably withheld, and in the event the Indemnifying Party and the Indemnified Party and use its reasonable efforts to make available 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 all relevant information in its possession or under its control and take such other steps as are, in the reasonable opinion of counsel for the Indemnified Party, necessary to enable the Indemnified Party to conduct the defence. The Indemnifying Party shall reimburse the Indemnified Party promptly and periodically for Losses incurred defending against the Third Party Claim, and shall remain responsible for any Loss the Indemnified Party may suffer resulting from, arising out of, or relating to, the Third Party Claim to the fullest extent provided in this Article 11's approval.
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Indemnification Procedure for Third Party Claims. (a) 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 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 promptly give written notice together with a statement of any available information regarding such claim to the Indemnifying Party within fifteen (15) 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 mayshall have the right, by upon written notice given to the Indemnified Party not later than 30 (the "Defense Notice") within thirty days (30) after receipt of the notice described in Section 11.6, assume control of the defence, compromise or settlement of the Third Party Claim so long as:
(i) from the Indemnified Party has at all times the right to fully participate in the defence at its own cost and expense (except of notice of such claim, which notice by the Indemnifying Party must reimburse shall specify the Indemnified Party for all Losses incurred by counsel it will appoint to defend such claim ("Defense Counsel"), to conduct at its expense the Indemnified Party defense against such claim in connection with its own name, or if necessary in the investigation and defence name of the Third Party Claim prior to the date the Indemnifying Party validly exercised its right to assume the investigation and defence of the Third Party Claim);
(ii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief against the Indemnified Party;
(iii) the Third Party Claim is not made or asserted by a supplier or customer of Seller;
(iv) the Indemnified Party determines in good faith that joint representation would not create a conflict of interest or be inappropriate where the Indemnifying Party is also a party to the Third Party Claim; and
(v) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the judgment of the Indemnified Party likely to have an adverse effect on the Indemnified Party's Tax liability or its continuing business interests.
(b) If In the event that the Indemnifying Party assumes shall fail to give the defence 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 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.
(c) In the 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 Party must:
(i) retain counsel satisfactory to the Indemnified Party, acting reasonably;
(ii) actively and diligently proceed with the defence, compromise or settlement of the Third Party Claim at its sole cost and expense;
(iii) pay or reimburse the Indemnified Party for any Taxes payable will cooperate with and make available to an applicable Governmental Authority under applicable Law notwithstanding that the Third Party Claim is in dispute;
(iv) keep the Indemnified Party fully advised with respect to the status of the Third Party Claim (including providing copies of all relevant documents promptly as they become available and giving access to all records and files relating to the defense of the Third Party Claim) and must arrange for its counsel to inform the Indemnified Party on a regular basis of the status of the Third Party Claim; and
(v) not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim unless consented to in writing by the Indemnified Party (which consent may not be unreasonably or arbitrarily withheld or delayed).
(c) Provided that all the conditions specified in Section 11.8(a) are satisfied and the Indemnifying Party is not in breach of any of its other obligations under this Section 11.8such assistance and materials as it may reasonably request, the Indemnified Party shall, all at the expense of the Indemnifying Party, cooperate with and the Indemnified Party shall have the right at its expense to participate in the defense assisted by counsel of its own choosing. Without the prior written consent of the Indemnified Party, the Indemnifying Party and use its reasonable efforts will not enter into any settlement of any Third Party Claim or cease to make available 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. If a firm decision is made to settle a Third Party Claim, which offer the Indemnifying Party all relevant information in its possession or is not permitted to settle under its control (provided that it does not cause either this Section 6.3 without the consent of them to breach any confidentiality obligations) and shall take such other steps as are, in the reasonable opinion of counsel for the Indemnifying Indemnified Party, necessary to enable and the Indemnifying Party desires to conduct accept and agree to such defence so long as:
(i) no admission of fault may be made by or on behalf of Buyers or any Buyer's offer, the Indemnifying Party will give written notice to the Indemnified Party to that effect. If the Indemnified Party fails to consent to such firm offer within 10 calendar days after its receipt of such notice, the Indemnified Party may 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 offer, plus costs and expenses paid or incurred by the Indemnified Party up to the point such notice had been delivered. Except as provided in Section 6.3(b) hereof, if an Indemnified Party settles any Third Party Claim without the prior written consent of Buyer;
(ii) the Indemnifying Party, the Indemnifying Party shall have no admission of fault may be made by or on behalf of Seller or any Seller's Indemnified Party without the prior written consent of such Person;
(iii) a Representative of obligation to indemnify the Indemnified Party is not obligated to take any measures which, in the reasonable opinion of its legal counsel, could be prejudicial or unfavourable to the Indemnified Party; and
(iv) the Indemnified Party receives, as part of any compromise or settlement, a legally binding and enforceable unconditional release, which is in form and substance satisfactory to the Indemnified Party, acting reasonably, from any and all obligations or Liabilities it may have under this Article 6 with respect to the such Third Party Claim.
(d) Notwithstanding Section 6.3(a) hereof, if, after receipt of a Defense Notice, any Third Party Claim seeks an injunction or other equitable relief, which, if successful, could reasonably be expected to materially interfere with the business, operations, assets, condition (financial or otherwise) of the Business Unit then, and in such event, Buyer shall have the right to control the defense or settlement of any such Third Party Claim. If Buyer should so elect to exercise such right, Buyer shall pay the reasonable legal expenses associated with such defense and the Indemnifying Party does shall have the right at its sole expense to participate in, but not assume control, the defence defense or settlement of a such Third Party Claim. No settlement of any such Third Party Claim because: (i) it is not entitled to under Section 11.8(a); (ii) it has not elected to assume may be made without the defence of a Third Party Claim or fails to give notice to the Indemnified Party as specified in Section 11.8(a); or (iii) it is not in compliance, in the opinion consent of the Indemnified Indemnifying Party acting reasonably, with any of the conditions listed in Section 11.8(b), the Indemnified Party has the right to assume the defence, compromise or settlement of the Third Party Claim and retain counsel in its sole discretion at the Indemnifying Party's sole cost and expensewhich consent may not be unreasonably withheld.
(e) Any judgment entered or settlement or other final determination of agreed upon in the Third Party Claim pursuant to Section 11.8(d) will manner provided herein shall be binding upon the Indemnifying Party. The Indemnifying , and shall conclusively be deemed to be an obligation with respect to which the Indemnified Party shallis entitled to prompt indemnification hereunder, at the sole cost and expense of subject to the Indemnifying Party, cooperate fully with the Indemnified Party and use its reasonable efforts 's right to make available to the Indemnified Party all relevant information in its possession appeal an appealable judgment or under its control and take such other steps as are, in the reasonable opinion of counsel for the Indemnified Party, necessary to enable the Indemnified Party to conduct the defence. The Indemnifying Party shall reimburse the Indemnified Party promptly and periodically for Losses incurred defending against the Third Party Claim, and shall remain responsible for any Loss the Indemnified Party may suffer resulting from, arising out of, or relating to, the Third Party Claim to the fullest extent provided in this Article 11order.
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Indemnification Procedure for Third Party Claims. A party (aan “Indemnified Party”) seeking indemnification based on a claim by a party other than a party to this Agreement (a “third party”) shall give prompt notice to the other party (the “Indemnifying Party”) of any claim for indemnification arising under this Article V. The Indemnifying Party mayshall have the right to assume and to control the defense of any third party claim with counsel reasonably acceptable to such Indemnified Party, by written notice given at the Indemnifying Party’s own cost and expense, including the cost and expense of attorneys’ fees and disbursements in connection with such defense, in which event the Indemnifying Party shall not be obligated to pay the fees and disbursements of separate counsel for such in such action. In the event, however, that defenses may be available to such Indemnified Party that are different from or in addition to those available to the Indemnifying Party, and there could reasonably be expected to be a conflict of interest if such Indemnifying Party and the Indemnified Party not later than 30 days after receipt of the notice described have common counsel in Section 11.6any such proceeding, assume control of the defence, compromise or settlement of the Third Party Claim so long as:
(i) if the Indemnified Party has at all times the right to fully participate in the defence at its own cost and expense (except the Indemnifying Party must reimburse the Indemnified Party for all Losses incurred by the Indemnified Party in connection with the investigation and defence of the Third Party Claim prior to the date the Indemnifying Party validly exercised its right to assume the investigation and defence of the Third Party Claim);
(ii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief against the Indemnified Party;
(iii) the Third Party Claim is not made or asserted by a supplier or customer of Seller;
(iv) the Indemnified Party determines in good faith that joint representation would not create a conflict of interest or be inappropriate where the Indemnifying Party is also a party to the Third Party Claim; and
(v) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the judgment of the Indemnified Party likely to have an adverse effect on the Indemnified Party's Tax liability or its continuing business interests.
(b) If the Indemnifying Party assumes the defence of a Third Party Claim, the Indemnifying Party must:
(i) retain counsel satisfactory to the Indemnified Party, acting reasonably;
(ii) actively and diligently proceed with the defence, compromise or settlement of the Third Party Claim at its sole cost and expense;
(iii) pay or reimburse the Indemnified Party for any Taxes payable to an applicable Governmental Authority under applicable Law notwithstanding that the Third Party Claim is in dispute;
(iv) keep the Indemnified Party fully advised with respect to the status of the Third Party Claim (including providing copies of all relevant documents promptly as they become available and giving access to all records and files relating to assumed the defense of the Third action or proceedings, then such Indemnifying Party Claim) and must arrange for its may employ separate counsel to inform the represent or defend such Indemnified Party on a regular basis of the status of the Third Party Claim; and
(v) not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim unless consented to in writing by the Indemnified Party (which consent may not be unreasonably or arbitrarily withheld or delayed).
(c) Provided that all the conditions specified in Section 11.8(a) are satisfied Party, and the Indemnifying Party is not in breach shall pay the reasonable fees and disbursements of counsel for such Indemnified Party. No settlement of any of its other obligations under this Section 11.8, such third party claim or payment in connection with any such settlement shall be made without the Indemnified Party shall, at the expense prior consent of the Indemnifying Party, cooperate with the Indemnifying Party and use its reasonable efforts to make available to the Indemnifying Party all relevant information in its possession or under its control (provided that it does which consent shall not cause either of them to breach any confidentiality obligations) and shall take such other steps as are, in the reasonable opinion of counsel for the Indemnifying Party, necessary to enable the Indemnifying Party to conduct such defence so long as:
(i) no admission of fault may be made by or on behalf of Buyers or any Buyer's Indemnified Party without the prior written consent of Buyer;
(ii) no admission of fault may be made by or on behalf of Seller or any Seller's Indemnified Party without the prior written consent of such Person;
(iii) a Representative of the Indemnified Party is not obligated to take any measures which, in the reasonable opinion of its legal counsel, could be prejudicial or unfavourable to the Indemnified Party; and
(iv) the Indemnified Party receives, as part of any compromise or settlement, a legally binding and enforceable unconditional release, which is in form and substance satisfactory to the Indemnified Party, acting reasonably, from any and all obligations or Liabilities it may have with respect to the Third Party Claimunreasonably withheld.
(d) If the Indemnifying Party does not assume the defence of a Third Party Claim because: (i) it is not entitled to under Section 11.8(a); (ii) it has not elected to assume the defence of a Third Party Claim or fails to give notice to the Indemnified Party as specified in Section 11.8(a); or (iii) it is not in compliance, in the opinion of the Indemnified Party acting reasonably, with any of the conditions listed in Section 11.8(b), the Indemnified Party has the right to assume the defence, compromise or settlement of the Third Party Claim and retain counsel in its sole discretion at the Indemnifying Party's sole cost and expense.
(e) Any settlement or other final determination of the Third Party Claim pursuant to Section 11.8(d) will be binding upon the Indemnifying Party. The Indemnifying Party shall, at the sole cost and expense of the Indemnifying Party, cooperate fully with the Indemnified Party and use its reasonable efforts to make available to the Indemnified Party all relevant information in its possession or under its control and take such other steps as are, in the reasonable opinion of counsel for the Indemnified Party, necessary to enable the Indemnified Party to conduct the defence. The Indemnifying Party shall reimburse the Indemnified Party promptly and periodically for Losses incurred defending against the Third Party Claim, and shall remain responsible for any Loss the Indemnified Party may suffer resulting from, arising out of, or relating to, the Third Party Claim to the fullest extent provided in this Article 11.
Appears in 1 contract
Sources: Stock Purchase Agreement (Nutracea)
Indemnification Procedure for Third Party Claims. (a) The Indemnifying In the event that an Indemnitee becomes aware of the possibility of any claim or the commencement of any Action by a third party in respect of which indemnity may be sought under the provisions of Section 6.3(a), Section 6.16(c), Section 6.20 or this Article IX (a “Third Party mayClaim”), by written notice given the Indemnitee shall notify the Indemnitor in writing of such Third Party Claim (such notice, a “Notice of Claim”); provided that the failure or delay in notifying the Indemnitor of such Third Party Claim will not relieve the Indemnitor of any Liability it may have to the Indemnified Indemnitee except to the extent that such failure or delay causes actual harm to the Indemnitor with respect to such Third Party not later than 30 days after receipt Claim. Any Notice of the notice described in Section 11.6, assume control of the defence, compromise or settlement of Claim shall describe the Third Party Claim so long as:
(i) in reasonable detail, shall include copies of all written material written evidence thereof and shall indicate the Indemnified Party estimated amount, if reasonably practicable, of the Loss that has at all times the right to fully participate in the defence at its own cost and expense (except the Indemnifying Party must reimburse the Indemnified Party for all Losses incurred been or may be sustained by the Indemnified Party in connection with the investigation and defence of the Third Party Claim prior to the date the Indemnifying Party validly exercised its right to assume the investigation and defence of the Third Party Claim);
(ii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief against the Indemnified Party;
(iii) the Third Party Claim is not made or asserted by a supplier or customer of Seller;
(iv) the Indemnified Party determines in good faith that joint representation would not create a conflict of interest or be inappropriate where the Indemnifying Party is also a party to the Third Party Claim; and
(v) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the judgment of the Indemnified Party likely to have an adverse effect on the Indemnified Party's Tax liability or its continuing business interests.
(b) If The Indemnitor will have 30 days from the Indemnifying Party assumes date on which the defence Indemnitor received the Notice of a 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, the Indemnifying Party must:
(i) retain Claim and any litigation resulting therefrom with counsel satisfactory reasonably acceptable to the Indemnified Party, acting reasonably;
Indemnitee and at the sole cost and expense of the Indemnitor (ii) actively and diligently proceed with a “Third Party Defense”). At any time prior to the defence, compromise or settlement Indemnitor’s assumption of the Third Party Claim at 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 sole cost and expense;
(iii) pay or reimburse interests. If the Indemnified Party for any Taxes payable to an applicable Governmental Authority under applicable Law notwithstanding that Indemnitor assumes the Third Party Claim is Defense in dispute;
accordance herewith: (ivi) keep the Indemnified Party fully advised with respect to the status of the Third Party Claim (including providing copies of all relevant documents promptly as they become available Indemnitee may, at its own expense, retain separate co-counsel and giving access to all records and files relating to participate in the defense of the Third Party Claim, but the Indemnitor shall control the investigation, defense and settlement thereof; (ii) and must arrange for its counsel to inform the Indemnified Party on a regular basis of the status of the Third Party Claim; and
(v) Indemnitor will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim unless consented 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 in writing by take any action, without the Indemnified Party consent of the Indemnitee (which consent may shall not be unreasonably or arbitrarily withheld 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 (cv) Provided the Indemnitee will provide reasonable cooperation in the Third Party Defense. Notwithstanding the foregoing, if counsel for the Indemnitee reasonably determines that all there is a conflict between the conditions specified in Section 11.8(a) are satisfied positions of the Indemnitor and the Indemnifying Party is not Indemnitee in breach conducting the defense of any 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 its other obligations under this Section 11.8, the Indemnified Party shallIndemnitee, at the expense of the Indemnifying Party, cooperate Indemnitor but only with respect to issues with respect to which such conflict exists.
(c) If the Indemnifying Indemnitor does not assume the Third Party and use its reasonable efforts to make available Defense prior to the Indemnifying end of the Indemnitor Defense Review Period, the Indemnitee shall have the right to assume the Third Party all relevant information 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 its possession or under its such Third Party Defense but the Indemnitee shall control (provided that it does not cause either of them to breach any confidentiality obligations) the investigation, defense and settlement thereof. The Indemnitee shall take such other steps as areconduct the Third Party Defense actively and diligently, and the Indemnitor will provide reasonable cooperation in the reasonable opinion of counsel for Third Party Defense. The Indemnitee shall have the Indemnifying Party, necessary right to enable the Indemnifying Party to conduct such defence so long as:
(i) no admission of fault may be made by or on behalf of Buyers or any Buyer's Indemnified Party without the prior written consent of Buyer;
(ii) no admission of fault may be made by or on behalf of Seller or any Seller's Indemnified Party without the prior written consent of such Person;
(iii) a Representative of the Indemnified Party is not obligated to take any measures which, in the reasonable opinion of its legal counsel, could be prejudicial or unfavourable to the Indemnified Party; and
(iv) the Indemnified Party receives, as part entry of any compromise judgment or settlement, a legally binding and enforceable unconditional release, which is in form and substance satisfactory to the Indemnified Party, acting reasonably, from enter into any and all obligations or Liabilities it may have settlement with respect to the Third Party ClaimClaim 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) If Notwithstanding anything herein to the Indemnifying Party does 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 the defence of a any Third Party Claim becauseDefense: (i) it is not entitled to under Section 11.8(a)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) it has not elected to assume the defence of a if such Third Party Claim relates to or fails to give notice to arises in connection with any criminal proceeding, Action, indictment, allegation or investigation against the Indemnified Party as specified in Section 11.8(a)Purchaser, the Company, any of its Subsidiaries or any of their respective Affiliates; or (iii) it if the Seller has failed or is not in compliance, in the opinion of the Indemnified Party acting reasonably, with any of the conditions listed in Section 11.8(b), the Indemnified Party has the right failing to assume the defence, compromise vigorously prosecute or settlement of the defend such Third Party Claim and retain counsel in its sole discretion at the Indemnifying Party's sole cost and expenseClaim.
(e) Any settlement or The Seller and the Purchaser shall cooperate with the each other final determination 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 pursuant and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses), to Section 11.8(d) will be binding upon the Indemnifying Party. The Indemnifying Party shalldefending party, at the sole cost and expense management employees of the Indemnifying Party, cooperate fully with the Indemnified Party and use its reasonable efforts to make available to the Indemnified Party all relevant information in its possession or under its control and take such other steps non-defending party as are, in the reasonable opinion of counsel may reasonably be necessary for the Indemnified Party, necessary to enable preparation of the Indemnified Party to conduct the defence. The Indemnifying Party shall reimburse the Indemnified Party promptly and periodically for Losses incurred defending against the defense of such Third Party Claim, and shall remain responsible for (ii) making available the benefits of the Policies in effect prior to or after the Closing to the extent available to satisfy any Loss the Indemnified Party may suffer resulting from, arising out of, or relating to, the such Third Party Claim to the fullest extent provided in this Article 11Claim.
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