Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims. (b) Promptly after receipt by an Indemnified Party of notice from a third party of a threatened or filed complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification hereunder, such Indemnified Party shall provide prompt written notice to Buyer or the Equity Holders, whichever is the appropriate indemnifying Party hereunder (the “Indemnifying Party”); provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty (30) days thereafter, to assume the defense of such Third Party Claim, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If the Indemnifying Party declines or fails to assume the defense of such Third Party Claim within such thirty (30) day period, however, the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claim. In any Third Party Claim or Misclassification Claim with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter and to retain its own counsel at such Party’s own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of any matter the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matter. (c) Subject to the provisions contained in Schedule 10.1(a)(iv), no Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder, including, but not limited to, with respect to Indemnified Misclassification Claims, without the prior written consent of the Indemnifying Party which shall not be unreasonably withheld, conditioned or delayed (it being acknowledged that any settlement which is generally consistent with amounts of prior settlements of Misclassification Claims by the Company or any Company Subsidiary shall be deemed reasonable). (d) If an Indemnified Party claims a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification Claim, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation or otherwise) and, within five (5) Business Days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in immediately available funds an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h).
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Indemnification Procedure. The procedure for indemnification ------------------------- pursuant to Sections 11.2 and 11.4 hereof shall be as follows: ------------- ----
(a) The Buyer party claiming indemnification (the "Claimant') shall have the right to control and defend, with counsel of its choosing reasonably acceptable -------- promptly give notice to the Sellers’ Representativeparty from whom such indemnification is claimed (the "Indemnifying Party") of any claim, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations whether between the parties hereto or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt ------------------ brought by an Indemnified Party of notice from a third party against Claimant, specifying in such notice (i) the factual basis for such claim, and (ii) the amount of a threatened or filed complaint or the threatened or actual commencement of any auditclaim, investigationif known, action if the claim relates to an action, suit, or proceeding other than filed by a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification hereunderthird party against Claimant, such Indemnified Party notice shall provide prompt be given by Claimant within five (5) business days after written notice of such action, suit, or proceeding was given to Buyer or the Equity Holders, whichever is the appropriate indemnifying Party hereunder (the “Indemnifying Party”)Claimant; provided, however, that failure of Claimant to give such notice within such five -------- ------- business day period shall limit Claimant's right to indemnification hereunder only to the failure extent the Indemnifying Party's defense of such claim is actually prejudiced by such delay.
(b) Following receipt of notice from Claimant of a claim which does not relate to so notify a third party claim, the Indemnifying Party shall relieve have thirty (30) days in which to make such investigation of the claim as Indemnifying Party from liability under this Agreement with shall deem necessary or desirable. For the purposes of such investigation, Claimant agrees to make available to Indemnifying Party and/or to its authorized representative(s) the information relied upon by Claimant to substantiate the claim. If Claimant and Indemnifying Party shall have agreed at or prior to the expiration of the said thirty (30) day period (or any mutually agreed-upon extension thereof) to the validity and amount of such claim, Indemnifying Party shall immediately pay to Claimant the amount so agreed upon. If Claimant and Indemnifying Party shall not have agreed to the validity and amount of such claim within the said thirty (30) day period (or any mutually agreed-upon extension thereof), Claimant may seek appropriate legal remedy.
(c) With respect to such any claim only ifby a third party as to which Claimant is entitled to indemnification hereunder, and only to the extent that, such failure to notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the right, upon written notice delivered right at its own expense to the Indemnified Party within thirty (30) days thereafter, participate in or to assume control of the defense of such Third Party Claimclaim, including and Claimant shall cooperate fully with Indemnifying Party, subject to reimbursement for actual out-of-pocket expenses incurred by Claimant as the employment result of counsel reasonably satisfactory a request to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Claimant by Indemnifying Party) and the payment of the fees and disbursements of such counsel. If the Indemnifying Party declines or fails elects to assume control of the defense of such Third Party Claim within such thirty (30) day periodany third-party claim, however, the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claim. In any Third Party Claim or Misclassification Claim with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, Claimant shall have the right to participate in such matter and to retain its own counsel at such Party’s own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of any matter the defense of which they are maintaining and such claim at Claimant's own expense; provided, however, that Claimant's participation -------- ------- shall not interfere with Indemnifying Party's defense of such claim. If Indemnifying Party does not elect to cooperate assume control or otherwise to participate in good faith with each other with respect to the defense of any such matter.
(c) Subject to third-party claim, Indemnifying Party shall be bound by the provisions contained in Schedule 10.1(a)(iv), no Indemnified Party may settle or compromise any claim or consent to the entry of any judgment results obtained by Claimant with respect to which indemnification is being sought hereunder, including, but not limited to, with respect to Indemnified Misclassification Claims, without the prior written consent of the Indemnifying Party which shall not be unreasonably withheld, conditioned or delayed (it being acknowledged that any settlement which is generally consistent with amounts of prior settlements of Misclassification Claims by the Company or any Company Subsidiary shall be deemed reasonable)such claim.
(d) If an Indemnified Party claims a right claim, whether between the parties hereto or by a third party, shall require immediate action, the parties hereto will make every effort to payment pursuant to this Agreement not involving reach a Third Party Claim or a Misclassification Claim, such Indemnified Party decision with respect thereto as expeditiously as possible.
(e) The indemnification rights provided in Sections 11.2 and ------------- 11.4 hereof shall send written notice of such claim extend to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail partners, shareholders, directors, officers, ---- employees, and representatives of Claimant, although for the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation or otherwise) and, within five (5) Business Days purpose of the final determination of the merits procedures set forth in this Section 11.6, any indemnification claims by such ------------ parties shall be made by and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in immediately available funds an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h)through Claimant.
Appears in 1 contract
Indemnification Procedure. (ai) The Buyer Person seeking indemnification under this Section 5.2 (the “Indemnified Party”) shall have the right to control and defend, with counsel of its choosing reasonably acceptable give to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt by an Indemnified Party of notice party from a third party of a threatened or filed complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to whom indemnification hereunder, such Indemnified Party shall provide prompt written notice to Buyer or the Equity Holders, whichever is the appropriate indemnifying Party hereunder sought (the “Indemnifying Party”) prompt written notice of any third-party claim which may give rise to any indemnity obligation under this Section 5.2, setting forth in reasonable detail the basis for the third-party claim, the facts giving rise to the third-party claim and the amount of the third-party claim (or, if such amount is not yet known, a reasonable estimate of the amount of the third-party claim), and the Indemnifying Party shall have the right to assume the defense of any such claim through counsel of his own choosing, by so notifying the Indemnified Party within 10 Business Days of receipt of the Indemnified Party’s written notice; provided, however, that such counsel shall be reasonably satisfactory to the Indemnified Party. Failure of the Indemnified Party to give prompt notice shall not affect the indemnification obligations hereunder except to the extent the Indemnifying Party is actually prejudiced by such failure or to the extent such failure results in the forfeiture by the Indemnifying Party of rights and defenses otherwise available to it. If the Indemnified Party desires to participate in any such defense assumed by the Indemnifying Party, it may do so at its sole cost and expense; provided, however, that the failure Indemnified Party shall be entitled to so notify participate in any such defense with separate counsel at the expense of the Indemnifying Party if, in the reasonable judgment of counsel to the Indemnified Party, a conflict or potential conflict exists, or there are separate or additional defenses available to the Indemnified Party, that would make such separate representation advisable. If the Indemnifying Party declines to assume any such defense or fails to diligently pursue any such defense, then the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, be liable for all reasonable costs and only to the extent that, such failure to notify the Indemnifying Party results in (i) the forfeiture expenses incurred by the Indemnifying Indemnified Party in connection with investigating, defending, settling and/or otherwise dealing with such claim, including reasonable fees and disbursements of material rights and defenses otherwise available counsel. The parties hereto agree to cooperate with each other in connection with the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to defense of any such claim. The Indemnifying Party shall have not, without the right, upon prior written notice delivered to the Indemnified Party within thirty (30) days thereafter, to assume the defense consent of such Third Party Claim, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If the Indemnifying Party declines or fails to assume the defense of such Third Party Claim within such thirty (30) day period, however, the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claim. In any Third Party Claim or Misclassification Claim with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter and to retain its own counsel at such Party’s own expense. The Indemnifying Party or the Indemnified Party, as the case may besettle, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Partycompromise, as the case may be, reasonably apprised of the status of any matter the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.
(c) Subject to the provisions contained in Schedule 10.1(a)(iv), no Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunderany such claim, includingunless such settlement, but compromise or judgment (x) does not limited toresult in the imposition of a consent order, with respect to injunction or decree that would restrict the future activity or conduct of the Indemnified Misclassification ClaimsParty or any Affiliate thereof, (y) does not involve any remedies other than monetary damages, and (z) includes an unconditional release of the Indemnified Party and its Affiliates for all liability arising out of such claim and any related claim. The Indemnified Party shall not, without the prior written consent of the Indemnifying Party Party, which shall not be unreasonably withheld, delayed or conditioned (unless such consent requires the Indemnifying Party to admit or delayed (it being acknowledged that suggest the admission of any settlement which is generally consistent criminal act or involves any remedies against the Indemnifying Party other than monetary damages), settle, compromise, or consent to the entry of any judgment with amounts of prior settlements of Misclassification Claims by the Company or respect to any Company Subsidiary shall be deemed reasonable)such claim.
(dii) If an indemnification claim by any Indemnified Party claims a right to payment pursuant to this Agreement is not involving a Third disputed by the Indemnifying Party Claim or a Misclassification Claim, such Indemnified Party shall send within 30 days after the Indemnifying Party’s having received written notice thereof, or has been resolved by a Law of such a Governmental Entity, by a settlement of the indemnification claim to in accordance with Section 5.2(c)(i) or by agreement of the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party (such written notice, Law, settlement or agreement, a “Resolution”), the applicable Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation or otherwise) and, within five (5) Business Days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in immediately available funds the Indemnified Party promptly following such Resolution an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage Losses of such claim Indemnified Party as determined hereunder set forth in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h)Resolution.
Appears in 1 contract
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt by an a Purchaser Indemnified Party or a Lenco Indemnified Party (hereinafter collectively referred to as an “Indemnified Party”) of notice from by a third party (including any governmental entity) of a threatened or filed any complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim Proceeding (a “Third Party Claim”as defined below) with respect to which such Indemnified Party may be entitled to indemnification hereunderreceive payment from the other Party for any Purchaser Losses or Lenco Losses, as the case may be, such Indemnified Party shall provide prompt written notice to Buyer notify the Purchaser Indemnifying Parties or Lenco Indemnifying Parties, as the Equity Holders, whichever is the appropriate indemnifying Party hereunder case may be (the “Indemnifying Party”), promptly following the Indemnified Party’s receipt of such complaint or of notice of the commencement of such Proceeding; provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty (30) ten days thereafterthereafter assuming full responsibility for any Purchaser Losses or Lenco Losses, as the case may be, resulting from such Proceeding, to assume the defense of such Third Party ClaimProceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If If, however, the Indemnifying Party declines or fails to assume the defense of such Third Party Claim the Proceeding on the terms provided above or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such thirty (30) ten day period, however, the then such Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, Proceeding and the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party ClaimProceeding. In any Third Party Claim or Misclassification Claim Proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall will have the right to participate in such matter and to retain its own counsel at such Party’s own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall will at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any matter the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matter. For purposes of this Section 6, “Proceeding” means actions, suits, claims, reviews, audits, investigations and legal, administrative or arbitration proceedings.
(c) Subject to the provisions contained in Schedule 10.1(a)(iv), no Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder, including, but not limited to, with respect to Indemnified Misclassification Claims, without the prior written consent of the Indemnifying Party which shall not be unreasonably withheld, conditioned or delayed (it being acknowledged that any settlement which is generally consistent with amounts of prior settlements of Misclassification Claims by the Company or any Company Subsidiary shall be deemed reasonable).
(d) If an Indemnified Party claims a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification Claim, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation or otherwise) and, within five (5) Business Days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in immediately available funds an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h).
Appears in 1 contract
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt by an a Purchaser Indemnified Party or a Seller Indemnified Party (hereinafter collectively referred to as an "Indemnified Party") of notice from by a third party (including any Governmental Entity) of a threatened or filed any complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) Proceeding with respect to which such Indemnified Party may be entitled to indemnification hereunderreceive payment from the other Party for any Purchaser Losses or Seller Losses, as the case may be, such Indemnified Party shall provide prompt written notice to Buyer notify Purchaser, Superfly or Seller, as the Equity Holders, whichever is the appropriate indemnifying Party hereunder case may be (the “"Indemnifying Party”"), promptly following the Indemnified Party's receipt of such complaint or of notice of the commencement of such Proceeding; provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty (30) 10 days thereafterthereafter assuming full responsibility for any Purchaser Losses or Seller Losses, as the case may be, resulting from such Proceeding, to assume the defense of such Third Party ClaimProceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If If, however, the Indemnifying Party declines or fails to assume the defense of such Third Party Claim the Proceeding on the terms provided above or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such thirty (30) 10 day period, however, the then such Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, Proceeding and the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurred; provided, however, ; that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party ClaimProceeding. In any Third Party Claim or Misclassification Claim Proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall will have the right to participate in such matter and to retain its own counsel at such Party’s party's own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall will at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any matter the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.
(cb) Subject to the provisions contained in Schedule 10.1(a)(iv), no No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunderhereunder without the prior written consent of the Indemnifying Party, includingunless (i) the Indemnifying Party fails to assume and maintain the defense of such claim pursuant to or (ii) such settlement, but not limited to, with respect to Indemnified Misclassification Claimscompromise or consent includes an unconditional release of the Indemnifying Party from all liability arising out of such claim. An Indemnifying Party may not, without the prior written consent of the Indemnifying Party which shall not be unreasonably withheldIndemnified Party, conditioned settle or delayed (it being acknowledged that compromise any settlement which is generally consistent with amounts of prior settlements of Misclassification Claims by the Company claim or any Company Subsidiary shall be deemed reasonable).
(d) If an Indemnified Party claims a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification Claim, such Indemnified Party shall send written notice of such claim consent to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for entry of any judgment with respect to which indemnification is being sought hereunder unless (i) such claim. As promptly as possible after settlement, compromise or consent includes an unconditional release of the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation or otherwise) and, within five (5) Business Days of the final determination of the merits and amount from all liability arising out of such claim, (iii) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (does not contain any admission or statement suggesting any wrongdoing or liability on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in immediately available funds an amount equal to such claim as determined hereunder, Indemnified Party and (iiiii) if does not contain any equitable order, judgment or term which in any manner affects, restrains or interferes with the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf business of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage Indemnified Party or any of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h)its Affiliates.
Appears in 1 contract
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after following receipt by an Indemnified Party of notice from by a third party (including any Governmental Entity) of a threatened any complaint, dispute or filed complaint claim or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification hereunderpursuant hereto (“Third-Party Claim”), such Indemnified Party shall provide prompt written notice thereof to Buyer or the Equity Holders, whichever is the appropriate indemnifying Party hereunder obligated to indemnify under this Agreement (the “Indemnifying Party”); , provided, however, that the failure or delay to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement hereunder with respect to such claim Third-Party Claim only if, and only to the extent that, such failure to notify or delay materially prejudices the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claimParty. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty (30) days thereafter, to assume the defense of such Third Third-Party Claim, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If the Indemnifying Party elects to undertake the defense of any Third-Party Claim hereunder, the Indemnified Party shall cooperate with the Indemnifying Party in the defense or settlement of the Third-Party Claim, including providing access to information, making documents available for inspection and copying, and making employees available for interviews, depositions and trial. The Indemnifying Party shall not be entitled to settle any Third-Party Claim without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that the Indemnifying Party shall be permitted to settle any Third-Party Claim without the prior written consent of the Indemnified Party if such Third-Party Claim seeks recovery of monetary damages only for which the Indemnifying Party has acknowledged its liability in writing and which are paid in full by the Indemnifying Party and such settlement includes the unconditional release of the Indemnified Party and its officers, directors, employees, and Affiliates from all liability in respect to such Third-Party Claim from each claimant and from the Indemnifying Party.
(b) In the event, however, that the Indemnifying Party declines or fails to assume the defense of such Third Third-Party Claim on the terms provided above or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such thirty (30) day 30)-day period, however, the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim andmay, if at the Indemnifying Party agrees that Party’s expense, defend against such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Third-Party Claim. In any Third Party Claim or Misclassification Claim with respect , after giving notice of the same to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is on such terms as the Indemnified Party may deem appropriate, and the Indemnifying Party shall be entitled to participate in (but not assuming control) the defense of such action, shall have the right to participate in such matter with its counsel and to retain at its own counsel at such Party’s own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of any matter the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.
(c) Subject to the provisions contained in Schedule 10.1(a)(iv), no Indemnified Party may shall not settle or compromise any claim or consent Third-Party Claim for which it is entitled to the entry of any judgment with respect to which indemnification is being sought hereunder, including, but not limited to, with respect to Indemnified Misclassification Claims, without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheldwithheld or delayed) unless such settlement, conditioned compromise or delayed (it being acknowledged that any settlement which is generally consistent with amounts consent includes an unconditional release of prior settlements of Misclassification Claims by the Company Indemnifying Party and its officers, directors, employees and Affiliates from all liability arising out of, or any Company Subsidiary shall be deemed reasonable)related to, such Third-Party Claim.
(dc) If In the event an Indemnified Party claims a right to payment pursuant hereto with respect to this Agreement any matter not involving a Third Party Claim third party complaint, dispute or a Misclassification claim (“Direct Claim”), such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying PartyParty (a “Notice of Claim”). Such notice Notice of Claim shall specify in reasonable detail the basis for such claimDirect Claim. As promptly as possible after The failure by any Indemnified Party to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability that it may have to such Indemnified Party with respect to any Direct Claim made pursuant to this Section 10.3(c), it being understood that Notices of Claim in respect of a breach of a representation or warranty must first be delivered prior to the expiration of the survival period for such representation or warranty under Section 10.4. In the event the Indemnifying Party does not notify the Indemnified Party within thirty (30) days following its receipt of such Notice of Claim that the Indemnifying Party disputes its liability to the Indemnified Party under this Article X or the amount thereof, the Direct Claim specified by the Indemnified Party in such Notice of Claim shall be conclusively deemed a liability of the Indemnifying Party under this Article X, and the Indemnifying Party shall pay the amount of such liability to the Indemnified Party on demand or, in the case of any notice in which the amount of the Direct Claim (or any portion of the Direct Claim) is estimated, on such later date when the amount of such Direct Claim (or such portion of such Direct Claim) becomes finally determined. In the event the Indemnifying Party has given timely disputed its liability with respect to such noticeDirect Claim as provided above, as promptly as possible, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim Direct Claim (by mutual agreement, litigation litigation, arbitration or otherwise) and, within five (5) Business Days of following the final determination of the merits and amount of such claimDirect Claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in the Indemnified Party immediately available funds in an amount equal to such claim Direct Claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h).
Appears in 1 contract
Indemnification Procedure. An Indemnified Party shall promptly notify the OM upon becoming aware of a Third-Party Claim with respect to which OM is obligated to provide indemnification under this Section (a) The Buyer "Indemnified Claim"). OM shall have promptly assume control of the right to control defense and defendinvestigation of the Indemnified Claim, with counsel of its choosing own choosing/reasonably acceptable to the Sellers’ RepresentativeIndemnified Party, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt by an and the Indemnified Party of notice from a third party of a threatened or filed complaint or the threatened or actual commencement of any auditshall fully cooperate with OM in connection therewith, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such in each case at OM's sole cost and expense. The Indemnified Party may be entitled to indemnification hereunder, participate in the defense of such Indemnified Claim, with counsel of its own choosing and at OM’s cost and expense. OM shall not settle any Indemnified Claim on any terms or in any manner that adversely affects the rights of any Indemnified Party shall provide prompt without the/such PHYTOCHEM Indemnified Party's prior written notice consent. If OM fails or refuses to Buyer or assume control of the Equity Holdersdefense of such Indemnified Claim, whichever is the appropriate indemnifying Party hereunder (the “Indemnifying Party”); provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claim. The Indemnifying Indemnified Party shall have the right, upon written notice delivered to the Indemnified Party within thirty (30) days thereafterbut no obligation, to assume the defense of defend against such Third Party Indemnified Claim, including the employment of counsel reasonably satisfactory settling such Indemnified Claim after giving notice to the Indemnified Party (OM, in each case in such manner and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of on such counsel. If the Indemnifying Party declines or fails to assume the defense of such Third Party Claim within such thirty (30) day period, however, terms as the Indemnified Party may employ counsel deem appropriate. Neither the Indemnified Party's failure to represent perform any obligation under this Section nor any act or defend it omission of the Indemnified Party in the defense or settlement of any such Third Party Indemnified Claim andshall relieve OM of its obligations under this Section, if the Indemnifying Party agrees that such Third Party Claim is a matter including with respect to which any Losses, except to the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in questionextent that OM can demonstrate that it has been materially prejudiced as a result thereof. For purposes of this Agreement "Losses" means losses, the Indemnifying Party will pay the damages, liabilities, deficiencies, Actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys' fees and disbursements the cost of such counsel as incurred; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in enforcing any jurisdiction in any single Third Party Claim. In any Third Party Claim or Misclassification Claim with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter and to retain its own counsel at such Party’s own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of any matter the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.
(c) Subject to the provisions contained in Schedule 10.1(a)(iv), no Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder, including, but not limited to, with respect to Indemnified Misclassification Claims, without the prior written consent of the Indemnifying Party which shall not be unreasonably withheld, conditioned or delayed (it being acknowledged that any settlement which is generally consistent with amounts of prior settlements of Misclassification Claims by the Company or any Company Subsidiary shall be deemed reasonable).
(d) If an Indemnified Party claims a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification Claim, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party hereunder and the appropriate Indemnifying Party shall establish the merits and amount cost of such claim (by mutual agreement, litigation or otherwise) and, within five (5) Business Days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in immediately available funds an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h)pursuing any insurance providers.
Appears in 1 contract
Sources: Development & Commercialization Agreement (Nutrafuels Inc)
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt by an a Purchaser Indemnified Party or a Seller Indemnified Party (hereinafter collectively referred to as an "Indemnified Party") of notice from by a third party (including any Governmental Entity) of a threatened or filed any complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) Proceeding with respect to which such Indemnified Party may be entitled to indemnification hereunderreceive payment from the other Party for any Purchaser Losses or Seller Losses, as the case may be, such Indemnified Party shall provide prompt written notice to Buyer notify Purchaser, Superfly or Seller, as the Equity Holders, whichever is the appropriate indemnifying Party hereunder case may be (the “"Indemnifying Party”"), promptly following the Indemnified Party's receipt of such complaint or of notice of the commencement of such Proceeding; provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty (30) 10 days thereafterthereafter assuming full responsibility for any Purchaser Losses or Seller Losses, as the case may be, resulting from such Proceeding, to assume the defense of such Third Party ClaimProceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If If, however, the Indemnifying Party declines or fails to assume the defense of such Third Party Claim the Proceeding on the terms provided above or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such thirty (30) 10 day period, however, the then such Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, Proceeding and the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurred; provided, however, ; that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party ClaimProceeding. In any Third Party Claim or Misclassification Claim Proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall will have the right to participate in such matter and to retain its own counsel at such Party’s party's own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall will at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any matter the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.
(cb) Subject to the provisions contained in Schedule 10.1(a)(iv), no No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunderhereunder without the prior written consent of the Indemnifying Party, includingunless (i) the Indemnifying Party fails to assume and maintain the defense of such claim pursuant to or (ii) such settlement, but not limited to, with respect to Indemnified Misclassification Claimscompromise or consent includes an unconditional release of the Indemnifying Party from all liability arising out of such claim. An Indemnifying Party may not, without the prior written consent of the Indemnifying Indemnified Party, settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder unless (i) such settlement, compromise or consent includes an unconditional release of the Indemnified Party from all liability arising out of such claim, (ii) does not contain any admission or statement suggesting any wrongdoing or liability on behalf of the Indemnified Party and (iii) does not contain any equitable order, judgment or term which shall not be unreasonably withheldin any manner affects, conditioned restrains or delayed (it being acknowledged that any settlement which is generally consistent interferes with amounts the business of prior settlements of Misclassification Claims by the Company Indemnified Party or any Company Subsidiary shall be deemed reasonable)of its Affiliates.
(dc) If an In the event any Indemnified Party claims should have a right to payment pursuant to this Agreement claim for indemnity against any Indemnifying Party that does not involving involve a Third Party Claim or a Misclassification Claimthird party claim, such the Indemnified Party shall send written deliver notice of such claim with reasonable promptness to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after The failure by any Indemnified party so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability that it may have to such Indemnified Party with respect to any claim made pursuant to this , it being understood that notices for claims in respect of a breach of a representation or warranty must be delivered prior to the expiration of the survival period for such representation or warranty under . If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days following its receipt of such notice that the Indemnifying Party disputes its liability to the Indemnified Party under this , or the amount thereof, the claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party under this , and the Indemnifying Party shall pay the amount of such liability to the Indemnified Party on demand or, in the case of any notice in which the amount of the claim (or any portion of the claim) is estimated, on such later date when the amount of such claim (or such portion of such claim) becomes finally determined. If the Indemnifying Party has given timely disputed its liability with respect to such noticeclaim as provided above, such Indemnified as promptly as possible, the Indemnifying Party and the appropriate Indemnifying Indemnified Party shall will establish the merits and amount of such claim (by mutual agreement, litigation litigation, arbitration or otherwise) and, within five (5) Business Days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, will pay to Buyer in the Indemnified Party immediately available funds in an amount equal to such claim as determined hereunder.
(d) Notwithstanding the foregoing provisions or any other provision in this Agreement to the contrary, and in connection with any Proceedings subject to , Purchaser Indemnified Parties shall be entitled to, at its option: (i) approve the Indemnifying Party's choice of counsel to Purchaser Indemnified Parties satisfaction in their sole discretion; or (ii) if assume the defense of such Proceedings, including the retention of counsel satisfactory to Purchaser Indemnified Parties in their sole discretion, the cost of which (including fees, expenses and disbursements) shall be borne by the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder provided in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h).
Appears in 1 contract
Sources: Asset Purchase Agreement
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after following receipt by an Indemnified Party of notice from by a third third-party (including any Governmental Body) of a threatened any complaint, dispute or filed complaint claim or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification hereunderpursuant to this Agreement (a “Third-Party Claim”), or upon realization of a Loss by an Indemnified Party for which the Indemnified Party is entitled to indemnification under this Article X, such Indemnified Party shall provide prompt written notice thereof to Buyer or the Equity Holders, whichever is the appropriate indemnifying Party hereunder (the “Indemnifying Party”)Stockholders’ Representative; provided, however, that the failure to so notify the Indemnifying Party Stockholders’ Representative shall relieve the Indemnifying Party from liability under this Agreement Article X with respect to such claim Third-Party Claim only if, and only to the extent that, such failure to so notify the Indemnifying Party results in (i) Stockholders’ Representative materially prejudices the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Third-Party with respect to such claimClaim. The Indemnifying Party shall have the right, upon written notice from the Stockholders’ Representative delivered to the Indemnified Party within thirty (30) 20 days thereafterthereafter assuming full responsibility for any Losses resulting from such Third-Party Claim, to assume the defense of such Third Third-Party Claim, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel; provided, however, that the Indemnifying Party shall not have the right to assume the defense of any Third-Party Claim that (i) affects any Intellectual Property Rights that the Company owns or has a right to use in the conduct of its business as currently conducted and as proposed to be conducted by the Company as of the Closing and by the Purchaser after the Closing, (ii) is asserted directly by or on behalf of any Person that is a supplier or a customer of the Company, the Indemnified Party or their Affiliates, (iii) seeks an injunction or other equitable relief against the Indemnified Party or its Affiliates, (iv) involves a finding of any violation of Law or other wrongdoing by the Indemnified Party, the Company or their Affiliates, (v) relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, or (vi) does not seek only monetary damages and, in the case of this clause (vi), the Indemnified Party reasonably believes an adverse determination with respect to the Third-Party Claim would be detrimental to or materially injure the reputation or future business prospects of the Indemnified Party. If In the event, however, that the Indemnifying Party declines or fails to assume the defense of such Third Third-Party Claim on the terms of this Section 10.2(a) or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such thirty (30) 10 day period, however, or thereafter defaults in continuing to defend the Indemnified Party may employ counsel to represent or defend it in Party, then any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will pay Losses shall include the reasonable fees and disbursements of such counsel for the Indemnified Party as incurred; provided. In addition, howeverLosses shall include, that as incurred, the Indemnifying Party will not be required to pay the reasonable fees and disbursements of more than one counsel for all the Indemnified Parties Party: (A) that are incurred prior to the date the Indemnifying Party effectively assumes control of such defense, (B) if the Indemnified Party employs separate counsel due to the Indemnified Party being advised by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnified Party and the Indemnifying Party, (C) if the Indemnified Party employs separate counsel because there are one or more legal or equitable defenses available to the Indemnified Party that are different from or in addition to those available to the Indemnifying Party, or (D) if the Indemnified Party employs separate counsel because 38 such audit, investigation, action or proceeding involves, or could have a material effect on, any jurisdiction in any single Third Party Claim. matter beyond the scope of the indemnification or defense obligations of the Indemnifying Party.
(b) In any Third Third-Party Claim or Misclassification Claim with respect to for which indemnification is being sought hereunderunder this Article X, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such actionThird-Party Claim, shall have the right to participate in such matter and to retain its own counsel at such Partyparty’s own expense. The Indemnifying Party or the Indemnified Party, Party (as the case may be, ) shall at all times use reasonable efforts to keep the Indemnifying Stockholders’ Representative or Indemnified Party or the Indemnified Party, (as the case may be, ) reasonably apprised of the status of the defense of any matter matter, the defense of which they are maintaining it is maintaining, and to cooperate in good faith with each the other party with respect to the defense of any such matter.
(c) Subject to the provisions contained in Schedule 10.1(a)(iv), no No Indemnified Party may settle or compromise any claim Third-Party Claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunderunder this Article X without the prior written consent of the Stockholders’ Representative (which may not be unreasonably withheld, includingconditioned or delayed), but not limited unless (i) the Indemnifying Party fails to assume and maintain diligently the defense of such Third-Party Claim pursuant to Section 10.2(a) or fails to reimburse the Indemnified Party within 30 days for expenses incurred by the Indemnified Party in defending itself against any Third-Party Claim in the circumstance where the Indemnifying Party fails to assume the defense of the Indemnified Party or as required under the last sentence of Section 10.2(a) or, having assumed the defense, thereafter defaults in pursuing such defense, or (ii) such settlement, compromise or consent includes an unconditional release of the Indemnifying Party and its officers, directors, employees and Affiliates from all liability arising out of, or related to, with respect such Third-Party Claim without further monetary liability to Indemnified Misclassification Claimsthe Indemnifying Party. An Indemnifying Party may not, without the prior written consent of the Indemnifying Indemnified Party, settle or compromise any Third-Party Claim or consent to the entry of any judgment with respect to which shall indemnification is being sought under this Article X unless such settlement, compromise or consent (A) includes an unconditional release of the Indemnified Party and its officers, directors, employees and Affiliates from all liability arising out of, or related to, such Third-Party Claim, (B) does not be unreasonably withheldcontain any admission or statement suggesting any wrongdoing or liability on behalf of the Indemnified Party, conditioned and (C) does not contain any equitable order, judgment or delayed (it being acknowledged term that in any settlement which is generally consistent manner affects, restrains or interferes with amounts the business of prior settlements of Misclassification Claims by the Company Indemnified Party or any Company Subsidiary shall be deemed reasonable)of the Indemnified Party’s Affiliates.
(d) If In the event an Indemnified Party claims a right to payment pursuant to this Agreement with respect to any Loss or other matter not involving a Third Third-Party Claim or (a Misclassification “Direct Claim”), such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying PartyStockholders’ Representative (a “Notice of Claim”). Such notice Notice of Claim shall specify in reasonable detail the basis for such claimDirect Claim. As promptly as possible after The failure by any Indemnified Party to so notify the Stockholders’ Representative shall not relieve the Indemnifying Party from any liability that it may have to such Indemnified Party with respect to any Direct Claim made pursuant to this Section 10.2(d), it being understood that Notices of Claim in respect of a breach of a representation or warranty must be delivered prior to the expiration of the survival period for such representation or warranty under Section 10.4. In the event the Stockholders’ Representative does not notify the Indemnified Party within 20 days following its receipt of such Notice of Claim that the Stockholders’ Representative disputes the Indemnifying Parties’ liability to the Indemnified Party under this Article X or the amount thereof, the Direct Claim specified by the Indemnified Party in such Notice of Claim shall be conclusively deemed a liability of the Indemnifying Party under this Article X, and the Indemnifying Party shall pay the amount of such liability to the Indemnified Party on demand or, in the case of any notice in which the amount of the Direct Claim (or any portion of the Direct Claim) is estimated, on such later date when the amount of such Direct Claim (or such portion of such Direct Claim) becomes finally determined. In the event the Stockholders’ Representative has given timely disputed its liability with respect to such noticeDirect Claim as provided in this Section 10.2(d), as promptly as reasonably practicable, such Indemnified Party and the appropriate Indemnifying Party Stockholders’ Representative shall establish the merits and amount of such claim Direct Claim (by mutual agreement, litigation or otherwise) and, within five (5) Business Days of following the final determination of the merits and amount of such claimDirect Claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer the Indemnified Party in immediately available funds an amount equal to such claim Direct Claim as determined hereunder, and (ii) if pursuant to this Section 10.2(d). If a dispute exists as to the Indemnifying Party is the Buyeramount of any Direct Claim, the Buyer prevailing party shall pay be entitled to (A) all legal and other fees paid in asserting or defending such Direct Claim, as the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h)case may be.
Appears in 1 contract
Sources: Stock Purchase Agreement
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after following receipt by an Indemnified Party of notice from by a third party (including any Governmental Body) of a threatened any complaint, dispute or filed complaint claim or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification hereunderreceive payment from the other party for any Purchaser Losses or any Seller Losses (as the case may be), such Indemnified Party shall provide prompt written notice thereof to Buyer Purchaser or Seller, as the Equity Holders, whichever is the appropriate indemnifying Party hereunder case may be (the “Indemnifying Party”); , provided, however, that the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from liability under this Agreement hereunder with respect to such claim only ifonly, and except only to the extent that, such failure to notify that the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claimshall have been prejudiced thereby. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty twenty (3020) days thereafterthereafter assuming full responsibility for any Purchaser Losses or Seller Losses (as the case may be) resulting from such audit, investigation, action or proceeding, to assume the defense of such Third Party Claimaudit, investigation, action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If In the event, however, that the Indemnifying Party declines or fails to assume the defense of such Third Party Claim the audit, investigation, action or proceeding on the terms provided above or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such thirty twenty (3020) day period, howeverthen any Purchaser Losses or any Seller Losses (as the case may be), the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will pay shall include the reasonable fees and disbursements of such counsel for the Indemnified Party as incurred; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claim. In any Third Party Claim audit, investigation, action or Misclassification Claim with respect to proceeding for which indemnification is being sought hereunder, hereunder the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter and to retain its own counsel at such Partyparty’s own expense. The Indemnifying Party or the Indemnified Party, Party (as the case may be, ) shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, Party (as the case may be, ) reasonably apprised of the status of the defense of any matter the defense of which they are it is maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.
(cb) Subject to the provisions contained in Schedule 10.1(a)(iv), no No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder, including, but not limited to, with respect to Indemnified Misclassification Claims, hereunder without the prior written consent of the Indemnifying Party (which shall may not be unreasonably withheldwithheld or delayed), conditioned unless (i) the Indemnifying Party fails to assume and maintain the defense of such claim pursuant to Section 9.3(a) or delayed (it ii) such settlement, compromise or consent includes an unconditional release of the Indemnifying Party and its officers, directors, employees and Affiliates from all liability arising out of, or related to, such claim. An Indemnifying Party may not, without the prior written consent of the Indemnified Party, settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being acknowledged that sought hereunder unless such settlement, compromise or consent (x) includes an unconditional release of the Indemnified Party and its officers, directors, employees and Affiliates from all liability arising out of, or related to, such claim, (y) does not contain any settlement which is generally consistent with amounts admission or statement suggesting any wrongdoing or liability on behalf of prior settlements the Indemnified Party and (z) involves only the payment of Misclassification Claims money damages by the Company Indemnifying Party and does not contain any equitable order, judgment or term that in any manner affects, restrains or interferes with the business of the Indemnified Party or any Company Subsidiary shall be deemed reasonable)of the Indemnified Party’s Affiliates.
(dc) If In the event an Indemnified Party claims a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification Claimhereto, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying PartyParty (a “Notice of Claim”). Such notice Notice of Claim shall specify in reasonable detail the basis for such claimclaim in reasonable detail. As promptly as possible after The failure by any Indemnified Party so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability that it may have to such Indemnified Party with respect to any claim made pursuant to this Section 9.3(c), it being understood that notices for claims in respect of a breach of a representation or warranty must be delivered prior to the expiration of the survival period for such representation or warranty under Section 9.4. In the event the Indemnifying Party does not notify the Indemnified Party within thirty (30) days following its receipt of such notice that the Indemnifying Party disputes its liability to the Indemnified Party under this Article or the amount thereof, the claim specified by the Indemnified Party in such Notice of Claim shall be conclusively deemed a liability of the Indemnifying Party under this Article IX, and the Indemnifying Party shall pay the amount of such liability to the Indemnified Party on demand or, in the case of any notice in which the amount of the claim (or any portion of the claim) is estimated, on such later date when the amount of such claim (or such portion of such claim) becomes finally determined. In the event the Indemnifying Party has given timely disputed its liability with respect to such noticeclaim as provided above, as promptly as possible, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation litigation, arbitration or otherwise) and, within five (5) Business Days of following the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in the Indemnified Party immediately available funds in an amount equal to such claim as determined hereunder, and . The unpaid balance of a liquidated claim shall bear interest at the rate of five percent (ii5%) if per annum from the date thirty (30) days after written Notice of Claim thereof is given by an Indemnified Party to an Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h)pursuant hereto.
Appears in 1 contract
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt by an a Purchaser Indemnified Party or a Seller Indemnified Party (hereinafter collectively referred to as an “Indemnified Party”) of notice from by a third party (including any governmental entity) of a threatened or filed any complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim Proceeding (a “Third Party Claim”as defined below) with respect to which such Indemnified Party may be entitled to indemnification hereunderreceive payment from the other Party for any Purchaser Losses or Seller Losses, as the case may be, such Indemnified Party shall provide prompt written notice to Buyer notify Seller or Purchaser, as the Equity Holders, whichever is the appropriate indemnifying Party hereunder case may be (the “Indemnifying Party”), promptly following the Indemnified Party’s receipt of such complaint or of notice of the commencement of such Proceeding; provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty ten (3010) days thereafterthereafter assuming full responsibility for any Purchaser Losses or Seller Losses, as the case may be, resulting from such Proceeding, to assume the defense of such Third Party ClaimProceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If If, however, the Indemnifying Party declines or fails to assume the defense of such Third Party Claim the Proceeding on the terms provided above or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such thirty ten (3010) day period, however, the then such Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, Proceeding and the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party ClaimProceeding. In any Third Party Claim or Misclassification Claim Proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall will have the right to participate in such matter and to retain its own counsel at such Party’s own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall will at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any matter the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matter. For purposes of this Section 7, “Proceeding” means actions, suits, claims, reviews, audits, investigations and legal, administrative or arbitration proceedings.
(c) Subject to the provisions contained in Schedule 10.1(a)(iv), no Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder, including, but not limited to, with respect to Indemnified Misclassification Claims, without the prior written consent of the Indemnifying Party which shall not be unreasonably withheld, conditioned or delayed (it being acknowledged that any settlement which is generally consistent with amounts of prior settlements of Misclassification Claims by the Company or any Company Subsidiary shall be deemed reasonable).
(d) If an Indemnified Party claims a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification Claim, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation or otherwise) and, within five (5) Business Days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in immediately available funds an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h).
Appears in 1 contract
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt by an a Horizon Indemnified Party or an IFM Indemnified Party (hereinafter collectively referred to as an "Indemnified Party") of notice from by a third party of a threatened or filed any complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification is being sought hereunder, such Indemnified Party shall provide prompt written notice to Buyer notify Horizon or the Equity HoldersIFM, whichever whoever is the appropriate indemnifying Party party hereunder (the “"Indemnifying Party”"), of such complaint or of the commencement of such action or proceeding; provided, however, that the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from liability for such claim arising otherwise than under this Agreement and such failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability which the Indemnifying Party may have hereunder with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty (30) days thereafterParty, to assume the defense of such Third Party Claimaction or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If In the event, however, that the Indemnifying Party declines or fails to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory to the Indemnified Party, in either case in a timely manner, then such Third Party Claim within such thirty (30) day period, however, the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if action or proceeding and the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will shall not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claimaction or proceeding. In any Third Party Claim action or Misclassification Claim proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter and to retain its own counsel at such Party’s own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of any matter the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.Indemnifying
(cb) Subject to the provisions contained in Schedule 10.1(a)(iv), no No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunderhereunder without the prior written consent of the Indemnifying Party, includingunless such settlement, but not limited to, with respect to Indemnified Misclassification Claimscompromise or consent includes an unconditional release of the Indemnifying Party from all liability arising out of such claim. An Indemnifying Party may not, without the prior written consent of the Indemnifying Indemnified Party, settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder unless such settlement, compromise or consent includes an unconditional release of the Indemnified Party from all liability arising out of such claim and does not contain any equitable order, judgment or term which shall not be unreasonably withheldin any manner affects, conditioned restrains or delayed (it being acknowledged that any settlement which is generally consistent interferes with amounts the business of prior settlements of Misclassification Claims by the Company Indemnified Party or any Company Subsidiary shall be deemed reasonable)of the Indemnified Party's respective affiliates.
(dc) If In the event an Indemnified Party claims shall claim a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification ClaimAgreement, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation litigation, arbitration or otherwise) and, within ). Within five (5) Business Days business days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject shall deliver to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer Indemnified Party in immediately available funds an amount equal to such claim as determined hereunder; provided, however, that to the extent any such claim arising out of Section 9.1 of this Agreement does not involve a payment by Horizon to any third party (including attorneys' fees incurred by Horizon), an amount equal to such claim shall instead (i) be set off against the monthly obligations of Horizon to pay principal and interest under the Note as such monthly payments become due, and (ii) if be delivered to the Indemnifying Horizon Indemnified Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) to the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of extent that such claim as determined hereunder in immediately available funds, which exceeds the Company shall promptly distribute to remaining principal and interest due under the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h)Note.
Appears in 1 contract
Sources: Asset Purchase Agreement (Horizon Medical Products Inc)
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt by an a Purchaser Indemnified Party or a Seller Indemnified Party (hereinafter collectively referred to as an “Indemnified Party”) of notice from by a third party of a threatened or filed any complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification hereunderreceive payment from the other party for any Purchaser Losses or Seller Losses (as the case may be), such Indemnified Party shall provide prompt written notice to Buyer promptly notify the Seller and Parent or the Equity HoldersPurchaser and Premier, whichever is as the appropriate indemnifying Party hereunder parties (the each, an “Indemnifying Party”), of such complaint or of the commencement of such action or proceeding; provided, however, that the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from liability arising otherwise than under this Agreement with respect to such claim; provided, further, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty (30) 20 days thereafter, to assume the defense of such Third Party Claimaction or proceeding, including the employment of counsel counsel. If the Indemnified Party, however, reasonably satisfactory to believes that its ongoing business may be affected by such action or proceeding, then the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory have the right to reject the Indemnified Party if Buyer is the Indemnified Party) and the payment assumption of the fees and disbursements of such counseldefense by the Indemnifying Party. If In the event that (i) the Indemnifying Party declines or fails to assume the defense of such Third the action or proceeding; (ii) the Indemnifying Party Claim within such thirty (30) day periodfails to employ counsel reasonably satisfactory to the Indemnifying Party rejects the assumption of the defense by the Indemnifying Party, however, then the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if action or proceeding and the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will shall not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claimaction or proceeding. In any Third Party Claim action or Misclassification Claim proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter litigation and to retain its own counsel at such Partyparty’s own expense. If an Indemnified Party gives notice to the Indemnifying Parties pursuant to this Section of the assertion of a third-party claim, the Indemnifying Parties shall be entitled to participate in the defense of such third-party claim and, to the extent that it wishes (unless (i) any Indemnifying Party is also a Person against whom the third-party claim is made and the Indemnified Party determines in good faith that joint representation would be inappropriate, or (ii) the Indemnifying Parties fail to provide reasonable assurance to the Indemnified Party of its financial capacity to defend such third-party claim and provide indemnification with respect to such third-party claim), to assume the defense of such third-party claim with counsel satisfactory to the Indemnified Party. After notice from the Indemnifying Parties to the Indemnified Party of its election to assume the defense of such third-party claim, the Indemnifying Parties shall not, so long as they diligently conduct such defense, be liable to the Indemnified Party under this Article VIII for any fees of other counsel or any other expenses with respect to the defense of such third-party claim, in each case subsequently incurred by the Indemnified Party in connection with the defense of such third-party claim, other than reasonable costs of investigation. Notwithstanding the foregoing, if an Indemnified Party determines in good faith that there is a reasonable probability that a third-party claim may adversely affect it or its Affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the Indemnified Party may, by notice to the Indemnifying Parties, assume the exclusive right to defend, compromise or settle such third-party claim, but the Indemnifying Party will not be bound by any settlement of such third-party claim effected without its consent (which may not be unreasonably withheld). The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any matter action the defense of which they are maintaining it is maintaining, and to cooperate in good faith with each other with respect to the defense of any such matteraction.
(cb) Subject to the provisions contained in Schedule 10.1(a)(iv), no Indemnified An Indemnifying Party may not, without the prior written consent of the Indemnified Party, settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder, including, but not limited to, with respect to Indemnified Misclassification Claims, without the prior written consent of hereunder unless (i) the Indemnifying Party which shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness thereof; (ii) the terms or effect of the settlement shall not be unreasonably withheld, conditioned or delayed (it being acknowledged that encumber any settlement which is generally consistent with amounts of prior settlements the assets of Misclassification Claims by the Company any Indemnified Party or any Company Subsidiary Affiliate thereof, or contain or result in any restriction, interference or condition that would apply to such Indemnified Party or its Affiliates or to the conduct of any of their respective businesses; and (iii) the Indemnifying Party shall be deemed reasonable)obtain, as a condition of such settlement, a complete unconditional release of each Indemnified Party.
(dc) If In the event an Indemnified Party claims shall claim a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification ClaimAgreement, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation or otherwise) and, within five (5) 15 Business Days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in the Indemnified Party immediately available funds in an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h).
Appears in 1 contract
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after following receipt by an a AQUM Indemnified Party to a Shareholder Indemnified Party, as applicable (an "Indemnified Party") of notice from by a third party (including any Governmental Entity) of a threatened any complaint, dispute or filed complaint claim or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification hereunderreceive payment from the other party for any AQUM Losses or any Shareholder Losses (as the case may be), such Indemnified Party shall provide prompt written notice to Buyer notify AQUM or the Equity HoldersShareholders, whichever is as the appropriate indemnifying Party hereunder case may be (the “Indemnifying Party”); , provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement hereunder with respect to such claim 35 only if, and only to the extent that, such failure to so notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty twenty (3020) days thereafterthereafter assuming full responsibility for any AQUM Losses or Shareholder Losses (as the case may be) resulting from such audit, investigation, action or proceeding, to assume the defense of such Third Party Claimaudit, investigation, action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If In the event, however, that the Indemnifying Party declines or fails to assume the defense of such Third Party Claim the audit, investigation, action or proceeding on the terms provided above or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such thirty (30) 20-day period, howeverthen any AQUM Losses or any Shareholder Losses (as the case may be), the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will pay shall include the reasonable fees and disbursements of such counsel for the Indemnified Party as incurred; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claim. In any Third Party Claim audit, investigation, action or Misclassification Claim with respect to proceeding for which indemnification is being sought hereunder, hereunder the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter and to retain its own counsel at such Partyparty’s own expense. The Indemnifying Party or the Indemnified Party, Party (as the case may be, ) shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, Party (as the case may be, ) reasonably apprised of the status of the defense of any matter the defense of which they are it is maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.
(c) Subject to the provisions contained in Schedule 10.1(a)(iv), no Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder, including, but not limited to, with respect to Indemnified Misclassification Claims, without the prior written consent of the Indemnifying Party which shall not be unreasonably withheld, conditioned or delayed (it being acknowledged that any settlement which is generally consistent with amounts of prior settlements of Misclassification Claims by the Company or any Company Subsidiary shall be deemed reasonable).
(d) If an Indemnified Party claims a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification Claim, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation or otherwise) and, within five (5) Business Days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in immediately available funds an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h).
Appears in 1 contract
Sources: Stock Purchase Agreement
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt by a party seeking indemnification under this Article 11 (an Indemnified Party “Indemnitee”) of notice from a third party of a threatened or filed complaint or the threatened or actual commencement of any audit, investigation, action pending or proceeding other than a Misclassification threatened Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification hereunderagainst it, such Indemnified Party Indemnitee shall provide prompt give written notice to Buyer or the Equity Holders, whichever Party from whom the Indemnitee is the appropriate indemnifying Party hereunder entitled to seek indemnification pursuant to this Article 11 (the “Indemnifying Party”)) of the commencement thereof; provided, however, provided that the failure so to so notify the Indemnifying Party shall not relieve it of any liability that it may have to any Indemnitee hereunder, except to the extent the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claimdemonstrates that it is materially prejudiced thereby. The Indemnifying Party shall have be entitled to participate in the rightdefense of such Claim and, upon written to the extent that it elects within ten (10) business days of its receipt of notice delivered of the Claim from the Indemnitee, to assume control of the defense and settlement of such Claim (unless the Indemnifying Party is also a party to such proceeding and the Indemnifying Party has asserted a cross claim against the Indemnified Party within thirty (30or a court has otherwise determined that such joint representation would be inappropriate) days thereafterwith counsel reasonably satisfactory to the Indemnitee and, after notice from the Indemnifying Party to the Indemnitee of its election to assume the defense of such Third Party Claim, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If the Indemnifying Party declines or fails to assume the defense of such Third Party Claim within such thirty (30) day period, however, the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will pay shall not, as long as it diligently conducts such defense, be liable to the reasonable fees and disbursements Indemnitee for any litigation costs subsequently incurred by the Indemnitee. No compromise or settlement of such counsel as incurred; provided, however, that any Claim may be effected by the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claim. In any Third Party Claim or Misclassification Claim with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter and to retain its own counsel at such Party’s own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of any matter the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.
(c) Subject to the provisions contained in Schedule 10.1(a)(iv), no Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder, including, but not limited to, with respect to Indemnified Misclassification Claims, without the prior Indemnitee’s written consent, which consent of the Indemnifying Party which shall not be unreasonably withheldwithheld or delayed, conditioned provided no consent shall be required if: (a) there is no finding or delayed admission of any violation of Applicable Laws or any violation of the rights of any person and no effect on any other claims that may be made against the Indemnitee; (it being acknowledged b) the sole relief provided is monetary damages that any settlement which is generally consistent with amounts of prior settlements of Misclassification Claims are paid in full by the Company or any Company Subsidiary shall be deemed reasonable).
Indemnifying Party; and (dc) If an Indemnified Party claims a right to payment pursuant to the Indemnitee’s rights under this Agreement are not involving a Third Party Claim restricted by such compromise or a Misclassification Claim, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation or otherwise) and, within five (5) Business Days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in immediately available funds an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h)settlement.
Appears in 1 contract
Sources: Joint Development & Supply Agreement (NANOPHASE TECHNOLOGIES Corp)
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt by an a Purchaser Indemnified Party or a Shareholder Indemnified Party (hereinafter collectively referred to as an "Indemnified Party") of notice from by a third party of a threatened or filed any complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification hereunderreceive payment from the other party for any Purchaser Losses or Shareholder Losses (as the case may be), such Indemnified Party shall provide prompt written notice to Buyer shall, within ten (10) days, notify Purchaser or the Equity HoldersShareholder Representative, whichever is as the appropriate indemnifying Party hereunder party or representative thereof (the “"Indemnifying Party”"), of such complaint or of the commencement of such action or proceeding; provided, however, that the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from liability for such claim arising otherwise than under this Agreement and such failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty twenty (3020) days thereafter, to assume the defense of such Third Party Claimaction or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If In the event, however, that the Indemnifying Party declines or fails to assume the defense of such Third Party Claim the action or proceeding or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such thirty (30) 20-day period, however, the then such Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if action or proceeding and the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will shall not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claimaction or proceeding. In any Third Party Claim action or Misclassification Claim proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter litigation and to retain its own counsel at such Party’s party's own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any matter action the defense of which they are it is maintaining and to cooperate in good faith with each other with respect to the defense of any such matteraction.
(cb) Subject to the provisions contained in Schedule 10.1(a)(iv), no No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunderhereunder without the prior written consent of the Indemnifying Party, includingunless such settlement, but not limited to, with respect to Indemnified Misclassification Claimscompromise or consent includes an unconditional release of the Indemnifying Party from all liability arising out of such claim. An Indemnifying Party may not, without the prior written consent of the Indemnified Party, settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder unless (i) the Indemnifying Party which shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness thereof; (ii) the terms or effect of the settlement shall not be unreasonably withheld, conditioned or delayed (it being acknowledged that encumber any settlement which is generally consistent with amounts of prior settlements the assets of Misclassification Claims by the Company any Indemnified Party or any Company Subsidiary affiliate thereof, or contain or result in any restriction, interference or condition that would apply to such Indemnified Party or its affiliates or to the conduct of any of their respective businesses; and (iii) the Indemnifying Party shall be deemed reasonable)obtain, as a condition of such settlement, a complete unconditional release of each Indemnified Party.
(dc) If In the event an Indemnified Party claims shall claim a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification ClaimAgreement, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation litigation, arbitration or otherwise) and, within five (5) Business Days 5 business days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in the Indemnified Party immediately available funds in an amount equal to such claim as determined hereunder.
(d) Consistent with the foregoing, it is understood that the Frey Shareholders shall, at their sole expense on behalf of Purchaser and (ii) if the Indemnifying Party is Waldorf Entities, monitor and, to the Buyerextent necessary or desirable, take such actions as the Frey ▇▇▇reholders deem appropriate with respect to the Wabash Tax Litigation in the manner provided in this Section 10.3. After payment in full by the Frey ▇▇▇reholders to Purchaser of all Purchaser Losses arising with respect to the Wabash Tax Litigation, the Buyer Frey Shareholders shall pay be entitled to (A) the Sellers’ Representative (pursue, on behalf of the Stockholders Waldorf Entities, any right of the Waldorf Entities to recover payments with respect to such Purchaser Losses under the Trident Agreement and the Warrant Holder) Tax Escrow Agreement. Purchaser will cooperate and will cause the Waldorf Entities to cooperate with the Frey ▇▇▇reholders in the Frey ▇▇▇reholders' pursuit of rights under the Trident Agreement and the Tax Escrow Agreement. To the extent that any Waldorf Entity recovers from the Frey ▇▇▇reholders for any such Purchaser Losses and Purchaser or any Waldorf Entity thereafter receives a payment for such Purchaser Losses under the Trident Agreement or the Tax Escrow Agreement, Purchaser shall refund an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute payment to the Option Holders in accordance with their respective Pro Rata Percentages Frey ▇▇▇reholders. As used herein, the "Trident Agreement" means the Shareholder Agreement and subject to Section 2.8(hPlan of Reorganization, dated February 1, 1994, by and among the Frey Shareholders, Rich▇▇▇ ▇. ▇'▇▇▇▇▇, ▇▇hn ▇. ▇▇▇▇▇, ▇▇it▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇ Enterprises International, Inc. (now Wabash), and Trident Enterprises International, Inc., and the "Tax Escrow Agreement" means the Tax Escrow- Split-Off, dated March 9, 1994, by and among the Frey ▇▇▇reholders, Rich▇▇▇ ▇. ▇'▇▇▇▇▇, ▇▇hn ▇. ▇▇▇▇▇, ▇▇it▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇ Enterprises International, Inc. (now Wabash) and First Trust National Association.
Appears in 1 contract
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(bi) Promptly after receipt by an a Purchaser Indemnified Party of notice from by a third party of a threatened or filed any complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification hereunderis being sought under this Agreement, such Purchaser Indemnified Party shall provide prompt written notice to Buyer notify the Seller of such complaint or of the Equity Holders, whichever is the appropriate indemnifying Party hereunder (the “Indemnifying Party”)commencement of such action or proceeding; provided, however, that the failure to so notify the Indemnifying Party Seller shall not relieve the Indemnifying Party Seller from liability under this Agreement with respect to for such claim only if, claims except and only to the extent that, that such failure to notify the Indemnifying Party Seller results in (i) the forfeiture by of, or otherwise prejudices the Indemnifying Party of material Seller's ability to establish, rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party Seller with respect to such claim. The Indemnifying Party Seller shall have the right, upon written notice delivered to the Purchaser Indemnified Party within thirty (30) days thereafterParty, to assume the defense of such Third Party Claimaction or proceeding, including the employment of counsel reasonably satisfactory to the Purchaser Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counselcounsel as incurred. If the Indemnifying Party Seller does not elect to assume control of the defense of any such claims, the Seller shall be bound by the results otherwise obtained with respect to such claim. In the event, however, that the Seller declines or fails to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory to such Third Party Claim within Purchaser Indemnified Party, in either case in a timely manner, then such thirty (30) day period, however, the Purchaser Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if action or proceeding and the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will Seller shall pay the reasonable fees and disbursements of such counsel as incurredupon receipt of an invoice; provided, however, that the Indemnifying Party will Seller shall not be required to pay the fees and disbursements of more than one counsel for all Purchaser Indemnified Parties in any jurisdiction in any single Third Party Claimaction or proceeding. In any Third Party Claim action or Misclassification Claim proceeding with respect to which indemnification is being sought hereunderunder this Agreement, the Purchaser Indemnified Party Parties or the Indemnifying PartySeller, whichever is not assuming the defense of such action, shall have the right to participate in such matter litigation and to retain its own counsel at such Party’s party's own expense. The Indemnifying Party Purchaser Indemnified Parties or the Indemnified PartySeller, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party Seller or the Purchaser Indemnified PartyParties, as the case may be, reasonably apprised of the status of the defense of any matter claim the defense of which they are maintaining maintaining, and to cooperate in good faith with each other with respect to the defense of any such matteraction.
(cii) Subject Notwithstanding anything herein to the provisions contained in Schedule 10.1(a)(ivcontrary (including responsibility for defense of the claim), no Purchaser Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunderfrom the Seller under this Agreement, includingunless such settlement, but not limited tocompromise or consent includes an unconditional release of the Seller from all liability arising out of such claim, with respect to Indemnified Misclassification Claimsotherwise the prior written consent of the Seller must be obtained. The Seller shall not, without the prior written consent of the Indemnifying Party Purchaser, settle or compromise any claim or consent to the entry of any judgment with respect to which shall indemnification is being sought under this Agreement unless such settlement, compromise or consent includes an unconditional release of the Purchaser Indemnified Parties from all liability arising out of such claim and does not be unreasonably withheldcontain any equitable order, conditioned judgment or delayed (it being acknowledged that term which in any settlement which is generally consistent manner affects, restrains or interferes with amounts the business of prior settlements the Purchaser, any of Misclassification Claims by the Company Purchaser Indemnified Parties or any Company Subsidiary shall be deemed reasonable)of their respective affiliates.
(diii) If an In the event that a Purchaser Indemnified Party claims does claim a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification ClaimAgreement, such Purchaser Indemnified Party shall send written notice of such claim to the appropriate Indemnifying PartySeller. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Purchaser Indemnified Party has given such notice, such Purchaser Indemnified Party and the appropriate Indemnifying Party Seller shall establish the merits and amount of such claim (by mutual agreement, litigation agreement or otherwise) and, within five (5) Business Days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, arbitration as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer set forth in immediately available funds an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h6.2 hereof).
Appears in 1 contract
Indemnification Procedure. (a) The Buyer shall have In the right event that either party to control and defendthis Agreement is made a defendant in or party to any action or proceeding, with counsel of its choosing reasonably acceptable to judicial or administrative, instituted by any third party, the Sellers’ Representativeliabilities for which, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt by an Indemnified Party of notice from a third party of a threatened or filed complaint or the threatened costs or actual commencement expenses of any auditwhich, investigation, action or proceeding other than a Misclassification Claim are Damages (a “Third Party "Claim”) with respect to which such Indemnified Party may be entitled to indemnification hereunder"), such Indemnified Party shall provide prompt written notice to Buyer or the Equity Holders, whichever is the appropriate indemnifying Party hereunder party (the “"Indemnified Party") shall give the other party (the "Indemnifying Party”); provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in (i") the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claimprompt notice thereof. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty (30) days thereafter, be entitled to assume the defense of any such Third Party Claim, including provided that counsel for the employment Indemnifying Party, who shall conduct the defense of counsel reasonably satisfactory to such claim or litigation, shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld), and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If the Indemnifying Party declines or fails to assume the defense of such Third Party Claim within such thirty (30) day period, however, the Indemnified Party may employ counsel to represent assume or defend it participate in any such Third Party Claim and, if the Indemnifying Party agrees that defense at such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurredparty's expense; provided, however, that the Indemnifying Party will not be required to shall pay such expense, including the fees and disbursements expenses of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claim. In any Third Party Claim or Misclassification Claim with respect to which indemnification is being sought hereunderseparate counsel, if representation of the Indemnified Party by counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceeding, and provided further that the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this Article VII unless the failure to give such notice is materially prejudicial to an Indemnifying Party's ability to defend such action. No Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter and to retain its own counsel at such Party’s own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of any matter the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.
claim or litigation shall, except with the consent of each Indemnified Party (c) Subject not to the provisions contained in Schedule 10.1(a)(ivbe unreasonably withheld), no Indemnified Party may settle or compromise any claim or consent to the entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a full release from all liability in respect to such claim or litigation. No Indemnifying Party shall be required to indemnify any Indemnified Party with respect to which indemnification is being sought hereunder, including, but not limited to, with respect to Indemnified Misclassification Claims, any settlement entered into without the such Indemnifying Party's prior written consent of the Indemnifying Party which shall (not to be unreasonably withheld, conditioned or delayed (it being acknowledged that any settlement which is generally consistent with amounts of prior settlements of Misclassification Claims by the Company or any Company Subsidiary shall be deemed reasonable).
(d) If an Indemnified Party claims a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification Claim, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation or otherwise) and, within five (5) Business Days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in immediately available funds an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h).
Appears in 1 contract
Indemnification Procedure. A Party (aan "Indemnified Party") The Buyer seeking indemnification shall have the right to control and defend, with counsel of its choosing reasonably acceptable give prompt notice to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
other Party (bthe "Indemnifying Party") Promptly after receipt by an Indemnified Party of notice from a third party of a threatened or filed complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to claim for indemnification hereunder, such Indemnified Party shall provide prompt written notice to Buyer or the Equity Holders, whichever is the appropriate indemnifying Party hereunder (the “Indemnifying Party”); provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability arising under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claimArticle XI. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty (30) days thereafter, right to assume and to control the defense of any such Third Party Claimclaim with counsel reasonably acceptable to such Indemnified Party, at the Indemnifying Party's own cost and expense, including the employment cost and expense of counsel reasonably satisfactory reasonable attorneys' fees and disbursements in connection with such defense, in which event the Indemnifying Party shall not be obligated to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of pay the fees and disbursements of separate counsel for such counselIndemnified Party in such action. If In the event, however, that such Indemnified Party's legal counsel shall determine that defenses may be available to such Indemnified Party that are different from or in addition to those available to the Indemnifying Party, in that there Exhibit 2.1 15 could reasonably be expected to be a conflict of interest if such Indemnifying Party declines and the Indemnified Party have common counsel in any such proceeding, or fails to assume if the Indemnified Party has not assumed the defense of the action or proceedings, then such Third Party Claim within such thirty (30) day period, however, the Indemnified Indemnifying Party may employ separate counsel to represent or defend it in any such Third Party Claim andIndemnified Party, if and the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claim. In any Third Party Claim or Misclassification Claim with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter and to retain its own counsel at such Party’s own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of any matter the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense . No settlement of any such matter.
(c) Subject to the provisions contained in Schedule 10.1(a)(iv), no Indemnified Party may settle or compromise any claim or consent to the entry of payment in connection with any judgment with respect to which indemnification is being sought hereunder, including, but not limited to, with respect to Indemnified Misclassification Claims, such settlement shall be made without the prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld, conditioned or delayed (it being acknowledged that . INDEMNIFICATION LIMITS. No Party may seek damages form any settlement which is generally consistent with amounts of prior settlements of Misclassification Claims by the Company or any Company Subsidiary shall be deemed reasonable).
(d) If an Indemnified other Party claims a right to payment pursuant to this Agreement Article XI until such Party has incurred $25,000 in damages in the aggregate (which shall include, but is not involving a Third Party Claim limited to, all liabilities, losses, lost and expenses) resulting from the acts or a Misclassification Claim, such Indemnified Party shall send written notice omissions of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail Additionally, under no circumstances will the basis for such claimobligations of any Party under this Article XI exceed $1,000,000. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation or otherwise) and, within five (5) Business Days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in immediately available funds an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h).COVENANTS
Appears in 1 contract
Indemnification Procedure. (a) The Buyer shall have the right to control and defendIn case any such claim, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt by an Indemnified Party of notice from a third party of a threatened or filed complaint or the threatened or actual commencement of any audit, investigationsuit, action or proceeding other than a Misclassification Claim (a “Third "Claim") is brought against any Indemnified Party Claim”) with in respect to of which indemnification may be sought by such Indemnified Party may be entitled pursuant hereto, the Indemnified Party shall give prompt written notice thereof to indemnification hereunderthe indemnifying party, which notice shall include all documents and information in the possession of or under the control of such Indemnified Party reasonably necessary for the evaluation and/or defense of such Claim and shall provide prompt written notice to Buyer or the Equity Holders, whichever specifically state that indemnification for such Claim is the appropriate indemnifying Party hereunder (the “Indemnifying Party”)being sought under this Section 8; provided, however, that the failure of the Indemnified Party to so notify the Indemnifying Party indemnifying party shall relieve not limit or affect such Indemnified Party's rights to be indemnified pursuant to this Section 8. Upon receipt of such notice of Claim (together with such documents and information from such Indemnified Party), the Indemnifying Party from liability under this Agreement indemnifying party shall, at its sole cost and expense, defend in a commercially reasonable manner any such Claim with respect counsel reasonably satisfactory to such claim only ifIndemnified Party, and only which counsel may, without limiting the rights of such Indemnified Party pursuant to the extent thatnext succeeding sentence of this Section 8, also represent the indemnifying party in such investigation, action or proceeding. In the alternative, such failure Indemnified Party may elect to notify conduct the Indemnifying Party results in defense of the Claim, if (i) such Indemnified Party reasonably determines that the forfeiture conduct of its defense by the Indemnifying Party of material rights and defenses otherwise available indemnifying party could be materially prejudicial to the Indemnifying Party with respect to such claim or its interests, (ii) material prejudice the indemnifying party refuses to the Indemnifying Party with respect defend (or fails to such claim. The Indemnifying Party shall have the right, upon give written notice delivered to the Indemnified Party within thirty ten (3010) days thereafterof receipt of a notice of Claim that the indemnifying party assumes such defense), or (iii) the indemnifying party shall have failed, in such Indemnified Party's reasonable judgment, to assume defend the defense Claim in a commercially reasonable manner. The indemnifying party may settle any Claim against such Indemnified Party without such Indemnified Party's consent, provided (i) such settlement is without any Losses whatsoever to such Indemnified Party, (ii) the settlement does not include or require any admission of liability or culpability by such Third Indemnified Party Claim, including and (iii) the employment indemnifying party obtains an effective written release of counsel reasonably satisfactory liability for such Indemnified Party from the party to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall Claim with whom such settlement is being made, which release must be satisfactory reasonably acceptable to the Indemnified Party if Buyer is the such Indemnified Party) , and the payment of the fees and disbursements of such counsel. If the Indemnifying Party declines or fails to assume the defense of such Third Party Claim within such thirty (30) day period, however, the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter dismissal with prejudice with respect to which all claims made by the party against such Indemnified Party in connection with such Claim. The applicable Indemnified Party shall reasonably cooperate with the indemnifying party, at the indemnifying party's sole cost and expense, in connection with the defense or settlement of any Claim in accordance with the terms hereof. If such Indemnified Party is entitled pursuant to receive payment from this Section 8 to elect to defend such Claim by counsel of its own choosing and so elects, then the Indemnifying Party indemnifying party shall not be responsible for the Loss in question, the Indemnifying Party will pay the reasonable fees and disbursements any settlement of such counsel as incurred; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claim. In any Third Party Claim or Misclassification Claim with respect to which indemnification is being sought hereunder, the entered into by such Indemnified Party or without the Indemnifying Party, whichever is not assuming indemnifying party's consent. Except as provided in the defense of such action, shall have the right to participate in such matter and to retain its own counsel at such Party’s own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of any matter the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.
(c) Subject to the provisions contained in Schedule 10.1(a)(iv)immediately preceding sentence, no Indemnified Party may pay or settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder, including, but not limited to, with respect to Indemnified Misclassification Claims, without the prior written consent of the Indemnifying Party which shall not be unreasonably withheld, conditioned or delayed (it being acknowledged that any settlement which is generally consistent with amounts of prior settlements of Misclassification Claims by the Company or any Company Subsidiary shall be deemed reasonable)Claim and seek reimbursement therefor under this Section 8.
(d) If an Indemnified Party claims a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification Claim, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation or otherwise) and, within five (5) Business Days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in immediately available funds an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h).
Appears in 1 contract
Sources: Management Agreement (CapitalSource Healthcare REIT)
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after following receipt by an Indemnified Party of notice from by a third party (including any Governmental Entity) of a threatened any complaint, dispute or filed complaint claim or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification hereunderpursuant hereto, such Indemnified Party shall provide prompt written notice thereof to Buyer or the Equity Holders, whichever is the appropriate indemnifying Party hereunder obligated to indemnify under this Agreement (the “Indemnifying Party”); , provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement hereunder with respect to such claim only if, and only to the extent that, such failure to so notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty twenty (3020) days thereafterthereafter assuming full responsibility for any AXLX Losses or VOIP Losses (as the case may be) resulting from such audit, investigation, action or proceeding, to assume the defense of such Third Party Claimaudit, investigation, action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If In the event, however, that the Indemnifying Party declines or fails to assume the defense of such Third Party Claim the audit, investigation, action or proceeding on the terms provided above or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such thirty (30) 20- day period, howeverthen any AXLX Losses or any VOIP Losses (as the case may be), the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will pay shall include the reasonable fees and disbursements of such counsel for the Indemnified Party as incurred; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claim. In any Third Party Claim audit, investigation, action or Misclassification Claim with respect to proceeding for which indemnification is being sought hereunder, hereunder the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter and to retain its own counsel at such Party’s own expense. The Indemnifying Party or the Indemnified Party, Party (as the case may be, ) shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, Party (as the case may be, ) reasonably apprised of the status of the defense of any matter the defense of which they are it is maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.
(cb) Subject to the provisions contained in Schedule 10.1(a)(iv), no No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder, including, but not limited to, with respect to Indemnified Misclassification Claims, hereunder without the prior written consent of the Indemnifying Party (which shall may not be unreasonably withheldwithheld or delayed), conditioned unless (i) the Indemnifying Party fails to assume and maintain the defense of such claim pursuant to Section 10.3(a) or delayed (it ii) such settlement, compromise or consent includes an unconditional release of the Indemnifying Party and its officers, directors, employees and Affiliates from all liability arising out of, or related to, such claim. An Indemnifying Party may not, without the prior written consent of the Indemnified Party, settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being acknowledged sought hereunder unless such settlement, compromise or consent (x) includes an unconditional release of the Indemnified Party and its officers, directors, employees and Affiliates from all liability arising out of, or related to, such claim, (y) does not contain any admission or statement suggesting any wrongdoing or liability on behalf of the Indemnified Party and (z) does not contain any equitable order, judgment or term that in any settlement which is generally consistent manner affects, restrains or interferes with amounts the business of prior settlements of Misclassification Claims by the Company Indemnified Party or any Company Subsidiary shall be deemed reasonable)of the Indemnified Party’s Affiliates.
(dc) If In the event an Indemnified Party claims a right to payment pursuant hereto with respect to this Agreement any matter not involving a Third Party Claim third party complaint, dispute or a Misclassification Claimclaim, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying PartyParty (a “Notice of Claim”). Such notice Notice of Claim shall specify in reasonable detail the basis for such claim. As promptly as possible after The failure by any Indemnified Party so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability that it may have to such Indemnified Party with respect to any claim made pursuant to this Section 10.3(c), it being understood that notices for claims in respect of a breach of a representation or warranty must be delivered prior to the expiration of the survival period for such representation or warranty under Section 10.4. In the event the Indemnifying Party does not notify the Indemnified Party within thirty (30) days following its receipt of such notice that the Indemnifying Party disputes its liability to the Indemnified Party under this Article or the amount thereof, the claim specified by the Indemnified Party in such Notice of Claim shall be conclusively deemed a liability of the Indemnifying Party under this Article X, and the Indemnifying Party shall pay the amount of such liability to the Indemnified Party on demand or, in the case of any notice in which the amount of the claim (or any portion of the claim) is estimated, on such later date when the amount of such claim (or such portion of such claim) becomes finally determined. In the event the Indemnifying Party has given timely disputed its liability with respect to such noticeclaim as provided above, as promptly as possible, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation litigation, arbitration or otherwise) and, within five (5) Business Days of following the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in the Indemnified Party immediately available funds in an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h).
Appears in 1 contract
Sources: Contribution Agreement
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(bi) Promptly after receipt by an eShare Indemnified Party of notice from by a third party of a threatened or filed any complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification hereunderis being sought under this Agreement, such eShare Indemnified Party shall provide prompt written notice to Buyer notify Melita of such complaint or of the Equity Holders, whichever is the appropriate indemnifying Party hereunder (the “Indemnifying Party”)commencement of such action or proceeding; provided, however, that the failure to so notify the Indemnifying Party shall Melita does not relieve the Indemnifying Party Melita from liability under this Agreement with respect to for such claim only if, except and only to the extent that, that such failure to notify the Indemnifying Party Melita results in (i) the forfeiture by the Indemnifying Party of, or otherwise prejudices Melita's or any of material its affiliates ability to establish rights and defenses otherwise available to the Indemnifying Party with respect to such claim Melita or (ii) material prejudice to the Indemnifying Party any of its affiliates with respect to such claim. The Indemnifying Party shall Melita will have the right, upon written notice delivered to the eShare Indemnified Party within thirty (30) days thereafterParty, to assume the defense of such Third Party Claimaction or proceeding, including the employment of counsel reasonably satisfactory to the eShare Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the reasonable fees and disbursements of such counselcounsel as incurred. If Melita does not elect to assume control of the Indemnifying Party defense of any such claims, Melita shall be bound by the results otherwise obtained with respect to such claim. In the event, however, that Melita declines or fails to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory to such Third Party Claim within eShare Indemnified Party, in either case in a timely manner, then such thirty (30) day period, however, the eShare Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will action or proceeding and Melita shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will Melita is not be required to pay the fees and disbursements of more than one counsel for all eShare Indemnified Parties in any jurisdiction in any single Third Party Claimaction or proceeding. In any Third Party Claim action or Misclassification Claim proceeding with respect to which indemnification is being sought hereunderunder this Agreement, the eShare Indemnified Party Parties or the Indemnifying PartyMelita, whichever is not assuming the defense of such action, shall have the right to participate in such matter litigation and to retain its own counsel at such Party’s party's own expense. The Indemnifying Party eShare Indemnified Parties or the Indemnified PartyMelita, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party Melita or the eShare Indemnified PartyParties, as the case may be, reasonably apprised of the status of the defense of any matter claim the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matteraction.
(cii) Subject to the provisions contained in Schedule 10.1(a)(iv), no No eShare Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunderfrom Melita under this Agreement without the prior written consent of Melita, includingunless such settlement, but compromise or consent includes an unconditional release of Melita and its affiliates from all liability arising out of such claim and does not limited tocontain any equitable order, judgment or term which in any manner affects, restrains or interferes with respect to Indemnified Misclassification Claimsthe business of Melita, or any of its affiliates. Melita shall not, without the prior written consent of each of eShare, settle or compromise any claim or consent to the Indemnifying Party entry of any judgment with respect to which shall indemnification is being sought under this Agreement unless such settlement, compromise or consent includes an unconditional release of the eShare Indemnified Parties from all liability arising out of such claim and does not be unreasonably withheldcontain any equitable order, conditioned judgment or delayed (it being acknowledged that term which in any settlement which is generally consistent material manner affects, restrains or interferes with amounts the business of prior settlements eShare, any of Misclassification Claims by the Company eShare Indemnified Parties or any Company Subsidiary shall be deemed reasonable)of their respective affiliates.
(diii) If an In the event that a eShare Indemnified Party claims does claim a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification ClaimAgreement, such eShare Indemnified Party shall send written notice of such claim to the appropriate Indemnifying PartyMelita. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the such eShare Indemnified Party has given such notice, such Indemnified Party eShare and the appropriate Indemnifying Party Melita shall establish the merits and amount of such claim (by mutual agreement, litigation litigation, arbitration, mediation or otherwise) and, within five (5) Business Days business days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is Melita shall deliver an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf amount of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer cash in immediately available funds an amount equal to such eShare Indemnified Party as appropriate to satisfy and discharge such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h)so determined.
Appears in 1 contract
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt by any party entitled to indemnification pursuant to Section 3.7(a) or 3.7(b) of this Agreement (an "Indemnified Party Party") of notice from by a third party of a threatened or filed any complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification is being sought hereunder, such Indemnified Party shall notify the party obligated to provide prompt written notice to Buyer or the Equity Holders, whichever is the appropriate indemnifying Party hereunder such indemnification (the “"Indemnifying Party”)") of such complaint or of the commencement of such action or proceeding; providedPROVIDED, howeverHOWEVER, that the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from liability for such claim arising otherwise than under this Agreement, and such failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement which the Indemnifying Party may have hereunder with respect to such claim if, but only if, and only to the extent that, such failure to notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty (30) days thereafterParty, to assume the defense of such Third Party Claimaction or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If In the event, however, that the Indemnifying Party declines or fails to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory to the Indemnified Party, in either case in a timely manner, then such Third Party Claim within such thirty (30) day period, however, the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if action or proceeding and the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will shall pay the reasonable fees and disbursements of such counsel as incurred; providedPROVIDED, howeverHOWEVER, that the Indemnifying Party will shall not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claimaction or proceeding. In any Third Party Claim action or Misclassification Claim proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter litigation and to retain its own counsel at such Party’s party's own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use reasonable best efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any matter action, the defense of which they are it is maintaining and to cooperate in good faith with each other the Indemnifying Party or the Indemnified Party, as the case may be, with respect to the defense of any such matter.
(c) Subject to the provisions contained in Schedule 10.1(a)(iv), no action. No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunderhereunder without the prior written consent of the Indemnifying Party, includingunless such settlement, but not limited to, with respect to Indemnified Misclassification Claimscompromise or consent includes an unconditional release of the Indemnifying Party from all liability arising out of such claim. An Indemnifying Party may not, without the prior written consent of the Indemnifying Indemnified Party, settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder unless such settlement, compromise or consent includes an unconditional release of the Indemnified Party from all liability arising out of such claim and does not contain any equitable order, judgment or term which shall not be unreasonably withheldin any manner affects, conditioned restrains or delayed (it being acknowledged that any settlement which is generally consistent interferes with amounts the business of prior settlements of Misclassification Claims by the Company Indemnified Party or any Company Subsidiary shall be deemed reasonable).
(d) If of the Indemnified Party's affiliates. In the event an Indemnified Party claims shall claim a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification ClaimAgreement, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation agreement or otherwise) and, within five (5) Business Days business days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject shall deliver to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in Indemnified Party immediately available funds in an amount equal to such claim as determined hereunder. If for any reason the indemnification provided for in this Section 3.7 is unavailable to an Indemnified Party or is insufficient to hold it harmless as contemplated by this Section 3.7, and (ii) if then the Indemnifying Party shall contribute to the amount paid or payable by the Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the Buyerrelative fault of the Indemnified Party and the Indemnifying Party, as well as any other relevant equitable considerations; provided that in no event shall the liability of any Holder for such contribution and indemnification exceed, in the aggregate, the Buyer shall pay to (A) the Sellers’ Representative (on behalf dollar amount of the Stockholders and proceeds received by such Holder upon the Warrant Holder) an amount equal sale of Shares giving rise to such Stockholders’ indemnification and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf contribution obligations. The obligations of the Option Holders) an amount equal parties under this Section 3.7 shall be in addition to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, any liability which the Company shall promptly distribute any party may otherwise have to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h)any other party.
Appears in 1 contract
Sources: Registration Rights and Voting Agreement (Dutch Institutional Holding Co Inc)
Indemnification Procedure. Claims for indemnification under this Agreement shall be asserted and resolved as follows:
(a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt If a claim by an Indemnified Party of notice from a third party of is made against a threatened Seller Indemnified Party or filed complaint or the threatened or actual commencement of a Purchaser Indemnified Party (any auditsuch Person, investigationan “Indemnified Party”), action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which and if such Indemnified Party may be entitled intends to indemnification hereunderseek indemnity with respect thereto under this Section VIII, such Indemnified Party shall provide prompt furnish written notice of such claim (in reasonable detail and including the factual basis for such claim and the amount thereof) to Buyer or the Equity HoldersParty against whom indemnity is sought (such Party, whichever is the appropriate indemnifying Party hereunder (in such capacity, the “Indemnifying Party”); provided. Thereafter, however, that the failure to so notify the Indemnifying Indemnified Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available deliver to the Indemnifying Party, promptly after the Indemnified Party’s receipt thereof, copies of all material notices and documents (including court papers) received or transmitted by the Indemnified Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect relating to such claim. The failure or delay of the Indemnified Party to deliver prompt written notice of a claim shall not affect the indemnity obligations of the Indemnifying Party shall have hereunder except to the rightextent the Indemnifying Party was actually disadvantaged by such failure or delay in delivery of notice of such claim. Within ten (10) Business Days of delivery of a notice of claim with respect to a third party claim, upon the Sellers may elect (by written notice delivered to the Indemnified Party within thirty (30Purchaser) days thereafterto take all necessary steps properly to diligently contest any third party claim or to prosecute such third party claim to conclusion or, to assume the defense of such Third Party Claim, including the employment of counsel reasonably satisfactory subject to the Indemnified Party (and Buyer hereby acknowledges provisions of this Section, settlement, provided that King & Spalding LLP shall be satisfactory as a condition to such election the Indemnified Party if Buyer is Sellers acknowledge the Indemnified Party) and the payment obligation of the fees and disbursements of Sellers pursuant to this Article VIII to indemnify the Purchaser Indemnified Parties for all losses that may result from such counselthird-party claim. If the Indemnifying Party declines Sellers make the foregoing election, Purchaser Indemnified Parties will have the right to participate at their own expense in all negotiations and proceedings. If the Sellers do not make such election within such period or fails fail to assume diligently contest such third party claim after such election, the Purchaser shall be free to handle the prosecution or defense of such Third Party Claim within such thirty (30) day period, however, the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim andand will permit the Sellers, at the sole cost of the Sellers, to participate in such prosecution or defense and will provide the Sellers with reasonable access to all relevant information and documentation relating to the Claim and the prosecution or defense thereof. No Indemnifying Party shall consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any such claim without the Indemnified Party’s prior written consent (which consent shall not be unreasonably withheld, delayed or conditioned); provided that, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claim. In any Third Party Claim or Misclassification Claim with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter and to retain its own counsel at such Party’s own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of any matter the defense of which they are maintaining and to cooperate in good faith with each other with respect to assumes the defense of any such matter.
(c) Subject to claim, the provisions contained in Schedule 10.1(a)(iv), no Indemnified Party shall agree to any settlement, compromise or discharge of such claim which the Indemnifying Party may settle recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Losses in connection with such claim and unconditionally releases the Indemnified Party and its Affiliates from all liability in connection with such claim. Whether or not the Indemnifying Party shall have assumed the defense of such claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise any claim or discharge (including the consent to the entry of any judgment with respect to which indemnification is being sought hereunderto), including, but not limited to, with respect to Indemnified Misclassification Claims, any such claim without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned delayed or delayed (it being acknowledged that conditioned) unless the Indemnified Party has waived in writing any settlement right to indemnity from the Indemnifying Party with respect to such claim in which is generally consistent with amounts of prior settlements of Misclassification Claims by the Company or any Company Subsidiary case no such consent shall be deemed reasonablerequired.
(b) In the event of payment in full by an Indemnifying Party to any Indemnified Party in connection with any claim (an “Indemnified Claim”), such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnified Party as to any events or circumstances in respect of which such Indemnified Party may have any right or claim relating to such Indemnified Claim against any claimant or plaintiff asserting such Indemnified Claim or against any other Person. Such Indemnified Party shall cooperate with such Indemnifying Party in a reasonable manner and (at such Indemnifying Party’s cost and expense) in prosecuting any subrogated right or claim.
(c) Any amount owing by an Indemnifying Party to an Indemnified Party in connection with any Indemnified Claim shall be paid by such Indemnifying Party within fifteen (15) days of final determination thereof (whether by mutual agreement of the Parties or pursuant to arbitral proceedings in accordance with Section XI below).
(d) If an a Purchaser Indemnified Party claims a right proceeds with the defense of any Third Party Claim, all fees and expenses, including reasonable attorneys’ fees, relating to payment pursuant to this Agreement not involving a the defense of such Third Party Claim or a Misclassification Claim, such Indemnified Party shall send written notice of such claim be deemed to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis be Losses for such claim. As promptly as possible after which the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation or otherwise) and, within five (5) Business Days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject Parties are entitled to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in immediately available funds an amount equal to such claim as determined indemnification hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h).
Appears in 1 contract
Indemnification Procedure. (a) The Buyer shall have In the right to control and defend, with counsel event of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations assertion or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt commencement by an Indemnified Party of notice from a third party of a threatened or filed complaint or the threatened or actual commencement any Person of any auditclaim or Legal Proceeding (whether against the Surviving Corporation, investigation, action against Parent or proceeding against any other than a Misclassification Claim (a “Third Party Claim”Person) with respect to which such any of the Indemnified Party Parties may be entitled to indemnification hereunderor any other remedy pursuant to this Article XI, such Indemnified Party Parent shall provide prompt promptly give the Stockholders’ Representative and the Escrow Agent written notice to Buyer of such claim or the Equity Holders, whichever is the appropriate indemnifying Party hereunder Legal Proceeding (the a “Indemnifying PartyClaim”); provided, however, that any failure on the failure part of Parent to so notify the Indemnifying Party Stockholders’ Representative shall relieve not limit any of the Indemnifying Party from liability Indemnified Parties’ rights to indemnification under this Agreement with respect to such claim only if, and only Article XI (except to the extent that, such failure materially prejudices the defense of such Legal Proceeding).
(b) Within ten (10) days of delivery of such written notice, the Stockholders’ Representative may elect (by written notice delivered to Parent) to take all necessary steps to properly contest any Claim involving third parties or to prosecute such Claim to conclusion or settlement if the Stockholders’ Representative acknowledges to Parent the Indemnified Party’s right to indemnity pursuant to this Agreement for Losses incurred by the Indemnified Party as a result of the Claim (subject to the limitations contained in this Agreement). If the Stockholders’ Representative makes the foregoing election, an Indemnified Party will have the right to participate at its own expense in all proceedings. If the Stockholders’ Representative does not make such election within such period or fails to diligently contest such Claim after such election, then the Indemnified Party shall be free to handle the prosecution or defense of any such Claim, and will take all necessary steps to contest the Claim involving third parties or to prosecute such Claim to conclusion or settlement, and will notify the Indemnifying Party results Stockholders’ Representative of the progress of any such Claim, will permit the Stockholders’ Representative, at the sole cost of the Stockholders’ Representative, to participate in (i) such prosecution or defense and will provide the forfeiture by the Indemnifying Party of material rights Stockholders’ Representative with reasonable access to all relevant information and defenses otherwise available documentation relating to the Indemnifying Party with respect Claim and the prosecution or defense thereof.
(c) Notwithstanding the foregoing, if a Claim includes Losses equal to such claim an amount in excess of the value of the Escrow Shares on the date of the Claim, or (ii) material prejudice relates to the Indemnifying Party with respect to such claim. The Indemnifying Party any Company Intellectual Property or other intellectual property issues, Parent shall have the right, upon written notice delivered to the Indemnified Party within thirty (30) days thereafterat its election, to assume proceed with the defense of such Third Party ClaimClaim or Legal Proceeding on its own. In any case, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment party not in control of the fees and disbursements Claim will cooperate with the other party in the conduct of such counsel. If the Indemnifying Party declines prosecution or fails to assume the defense of such Third Party Claim within such thirty (30) day period, however, the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claim. In any Third Party Claim or Misclassification Claim with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter and to retain its own counsel at such Party’s own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of any matter the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.
(cd) Subject to the provisions contained in Schedule 10.1(a)(iv), no Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder, including, but not limited to, with respect to Indemnified Misclassification Claims, without The Stockholders’ Representative must obtain the prior written consent of the Indemnifying Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed (it being acknowledged that any settlement which is generally consistent with amounts of ) prior settlements of Misclassification Claims by the Company or any Company Subsidiary shall be deemed reasonable).
(d) If an Indemnified Party claims a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification Claim, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation or otherwise) and, within five (5) Business Days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject ceasing to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in immediately available funds an amount equal to such claim as determined hereunder, and defend any Claim or Legal Proceeding or (ii) if entering into any settlement with respect to a Claim or Legal Proceeding. In the Indemnifying Party is event that the Buyer, the Buyer shall pay to (A) the SellersStockholders’ Representative (receives such consent with respect to the Stockholders’ Representative’s ceasing to defend a Claim or Legal Proceeding, Parent shall have the right, at its election, to proceed with the defense of such Claim or Legal Proceeding on behalf its own. If Parent proceeds with the defense of any such Claim or Legal Proceeding all reasonable expenses relating to the defense of such Claim or Legal Proceeding shall be satisfied first out of the Stockholders and Escrow Shares in the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder manner set forth in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h)Escrow Agreement.
Appears in 1 contract
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt by an a Purchaser Indemnified Party or a Seller Indemnified Party (hereinafter collectively referred to as an "Indemnified Party") of notice from by a third party of a threatened or filed any complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification is being sought hereunder, such Indemnified Party shall provide prompt written notice to Buyer notify Purchaser or the Equity HoldersSeller, whichever whoever is the appropriate indemnifying Party party hereunder (the “"Indemnifying Party”"), of such complaint or of the commencement of such action or proceeding; provided, however, that the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from liability for such claim arising otherwise than under this Agreement and such failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability which the Indemnifying Party may have hereunder with respect to such claim if, but only if, and only to the extent that, such failure to notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to prejudices the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the 36 46 right, upon written notice delivered to the Indemnified Party within thirty (30) days thereafterParty, to assume the defense of such Third Party Claimaction or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If In the event, however, that the Indemnifying Party declines or fails to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory to the Indemnified Party, in either case in a timely manner, then such Third Party Claim within such thirty (30) day period, however, the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if action or proceeding and the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will shall not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claimaction or proceeding. In any Third Party Claim action or Misclassification Claim proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter litigation and to retain its own counsel at such Party’s party's own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any matter action the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matteraction.
(cb) Subject to the provisions contained in Schedule 10.1(a)(iv), no No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunderhereunder without the prior written consent of the Indemnifying Party, includingunless such settlement, but not limited to, with respect to Indemnified Misclassification Claimscompromise or consent includes an unconditional release of the Indemnifying Party from all liability arising out of such claim. An Indemnifying Party may not, without the prior written consent of the Indemnifying Indemnified Party, settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder unless such settlement, compromise or consent includes an unconditional release of the Indemnified Party from all liability arising out of such claim and does not contain any equitable order, judgment or term which shall not be unreasonably withheldin any manner affects, conditioned restrains or delayed (it being acknowledged that any settlement which is generally consistent interferes with amounts the business of prior settlements of Misclassification Claims by the Company Indemnified Party or any Company Subsidiary shall be deemed reasonable)of the Indemnified Party's respective affiliates.
(dc) If In the event an Indemnified Party claims shall claim a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification ClaimAgreement, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation agreement or otherwisearbitration in accordance with Section 8.6(c)) and, within five (5) Business Days business days of the final determination of the merits and amount of such claimclaim (a "Final Claim"), (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject shall deliver to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in Indemnified Party immediately available funds in an amount equal to such claim Final Claim as determined hereunder. 37 47 (d) Purchaser shall be entitled to offset the amount of any Final Claim amount due Purchaser or any Purchaser Indemnified Party from Seller or Shareholder under this Article 8 against any and all amounts that Purchaser may owe Seller pursuant to Article 1 hereof, and (ii) if the Indemnifying Party is the Buyerincluding, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available fundsbut not limited to, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h)any Positive Working Capital Balance, Initial Installment Payment and/or Final Installment Payment.
Appears in 1 contract
Sources: Asset Purchase Agreement (Healthcare Recoveries Inc)
Indemnification Procedure. (a) The Buyer Indemnified Representative shall use such Indemnified Representative's best efforts promptly to notify the Secretary of the Corporation of the commencement of any Proceeding or the occurrence of any event which might give rise to a Liability under this Agreement, but the failure so to notify the Corporation shall not relieve the Corporation of any liability which it may have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations Indemnified Representative under this Agreement or reviews that relate to Indemnified Misclassification Claimsotherwise.
(b) Promptly after receipt The Corporation shall be entitled, upon notice to the Indemnified Representative, to assume the defense of any such Proceeding with counsel reasonably satisfactory to the Indemnified Representative involved in such Proceeding, or a majority of the Indemnified Representatives involved in such Proceeding if there be more than one. If the Corporation notifies the Indemnified Representative of its election to defend the Proceeding, the Corporation shall have no liability for the expenses (including attorneys' fees) of the Indemnified Representative incurred in connection with the defense of such Proceeding subsequent to such notice, unless any of the following pertain: (i) such expenses (including attorneys' fees) have been authorized by the Corporation; (ii) the Corporation shall not, in fact, have employed counsel reasonably satisfactory to such Indemnified Representative or such majority of Indemnified Representatives to assume the defense of such Proceeding; or (iii) it shall have been determined pursuant to Section 5(d) that the Indemnified Representative was entitled to indemnification for such expenses under this Agreement or otherwise. Notwithstanding the foregoing, the Indemnified Representative may elect to retain counsel at the Indemnified Representative's own cost and expense to participate in the defense of such Proceeding.
(c) Except with respect to criminal matters and injunctive or other non‑monetary relief, the Corporation shall not be required to obtain the consent of the Indemnified Representative to the settlement of any Proceeding which the Corporation has undertaken to defend if the Corporation assumes full and sole responsibility for such settlement and the settlement grants the Indemnified Representative an unqualified release in respect of all Liabilities at issue in the Proceeding. The Corporation shall not be liable for any amount paid by an Indemnified Party of notice from a third party of a threatened or filed complaint or the threatened or actual commencement Representative in settlement of any auditProceeding that is not defended by the Corporation, investigationunless the Corporation has consented in writing to such settlement (which consent shall not be unreasonably withheld or delayed).
(d) Any dispute related to the right to indemnification or advancement of expenses hereunder, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) except with respect to indemnification for Liabilities arising under the Securities Act of 1933, as amended, which the Corporation has undertaken to submit to a court for adjudication, shall be enforceable only by arbitration in the City of Cincinnati, Ohio (or such Indemnified Party other metropolitan area to which the Corporation's executive offices may be entitled relocated), in accordance with the commercial arbitration rules then in effect of the American Arbitration Association, before a panel of three (3) arbitrators, one of whom shall be selected by the Corporation, the second of whom shall be selected by the Indemnified Representative and the third of whom shall be selected by the other two (2) arbitrators. In the absence of the American Arbitration Association or if for any reason arbitration under the commercial arbitration rules of the American Arbitration Association cannot be initiated or if the arbitrators selected by the Corporation and the Indemnified Representative cannot agree on the selection of the third arbitrator within thirty (30) days after such time as the Corporation and the Indemnified Representative have each been notified of the selection of the other's arbitrator, the necessary arbitrator or arbitrators shall be selected by the presiding judge of the court of general jurisdiction in the metropolitan area where arbitration under this subsection would otherwise have been conducted. Each arbitrator selected as provided herein is required to indemnification hereunder, be or have been a director of a corporation whose shares of common stock were listed during at least one year of such Indemnified Party shall provide prompt written notice to Buyer service on the New York Stock Exchange or the Equity HoldersAmerican Stock Exchange or quoted on the National Association of Securities Dealers Automated Quotations System. The party or parties challenging the right of an Indemnified Representative to the benefits of this Agreement shall have the burden of proof. The Corporation shall reimburse the Indemnified Representative for the expenses (including attorneys' fees and disbursements) incurred in successfully prosecuting or defending such arbitration. Any award entered by the arbitrators shall be final, whichever is the appropriate indemnifying Party hereunder (the “Indemnifying Party”)binding and nonappealable and judgment may be entered thereon by either party in accordance with applicable law in any court of competent jurisdiction; provided, however, that if the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only conduct giving rise to the extent that, such failure to notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty (30) days thereafter, to assume the defense of such Third Party Claim, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If the Indemnifying Party declines or fails to assume the defense of such Third Party Claim within such thirty (30) day period, however, the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party Liability for the Loss in question, the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claim. In any Third Party Claim or Misclassification Claim with respect to which indemnification is being sought hereunderhas been the subject of another proceeding not directly involving the Indemnified Representative's right to indemnification under this Agreement or otherwise, the Corporation shall be entitled to interpose, as a defense in any judicial enforcement proceeding on the arbitrators' award, any prior final judicial determination adverse to the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate Representative in such matter and to retain its own counsel at such Party’s own expenseother proceeding. The Indemnifying Party or the Indemnified Party, as the case may be, This arbitration provision shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of any matter the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matterbe specifically enforceable.
(ce) Subject Upon a payment to the provisions contained in Schedule 10.1(a)(iv)Indemnified Representative under this Agreement, no Indemnified Party may settle or compromise any claim or consent the Corporation shall be subrogated to the entry extent of any judgment with respect such payment to which indemnification is being sought hereunder, including, but not limited to, with respect to Indemnified Misclassification Claims, without the prior written consent all of the Indemnifying Party which rights of the Indemnified Representative to recover against any person for such Liability, and the Indemnified Representative shall not execute all documents and instruments required and shall take such other actions as may be unreasonably withheldnecessary to secure such rights, conditioned or delayed (it being acknowledged that any settlement which is generally consistent with amounts of prior settlements of Misclassification Claims by including the Company or any Company Subsidiary shall be deemed reasonable).
(d) If an Indemnified Party claims a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification Claim, such Indemnified Party shall send written notice execution of such claim documents as may be necessary for the Corporation to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for bring suit to enforce such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation or otherwise) and, within five (5) Business Days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in immediately available funds an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h)rights.
Appears in 1 contract
Indemnification Procedure. If a party eligible for indemnification under this Article 15 (a) The Buyer shall have the right to control and defendin this section, with counsel of its choosing reasonably acceptable to the Sellers’ Representativean “Indemnified Party”), all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt by an Indemnified Party of notice from a third party of a threatened or filed complaint or the threatened or actual commencement of receives any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to written claim which such Indemnified Party may be entitled it believes gives rise to indemnification hereunderunder this Article 15, such the Indemnified Party shall provide prompt written give notice of the claim to Buyer or the Equity Holders, whichever is the appropriate indemnifying Party hereunder other party (the “Indemnifying Party”); , including full particulars of the claim to the extent known to the Indemnified Party, provided, however, that the failure to so notify the Indemnifying Party give timely notice as contemplated hereby shall relieve not release the Indemnifying Party from any liability to indemnify any persons indemnified under this Agreement with respect to such claim only if, and only Article 15 to the extent that, such failure to notify does not compromise the Indemnifying Party results Party’s ability to prosecute such claim, and, subject to Article 10 in respect of infringement claims and infringement actions, the following shall apply:
(ia) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the right, upon written by prompt notice delivered to the Indemnified Party within thirty (30) days thereafterParty, to assume the defense of such Third Party Claim, including the employment of claim with counsel reasonably satisfactory to the Indemnified Party Party, and at the Indemnifying Party’s cost and expense;
(and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party b) if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If the Indemnifying Party declines or fails to does not so assume the defense of such Third Party Claim within such thirty (30) day period, howeverthe claim, the Indemnified Party may employ assume the defense with counsel to represent or defend it in any such Third Party Claim and, of its choice at the Indemnifying Party’s cost and expense;
(c) if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which assumes the Indemnified Party is entitled to receive payment from defense of the Indemnifying Party for the Loss in question, the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claim. In any Third Party Claim or Misclassification Claim with respect to which indemnification is being sought hereunderclaim, the Indemnified Party or may participate therein through counsel of its choice, but the cost of such counsel shall be borne solely by the Indemnified Party;
(d) the Indemnified Party shall render all reasonable assistance to the Indemnifying Party and all out-of-pocket costs of this assistance shall be borne solely by the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter and to retain its own counsel at such Party’s own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of any matter the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.; and
(ce) Subject to no claim shall be settled other than by the provisions contained in Schedule 10.1(a)(iv)party defending the claim, no Indemnified Party may settle or compromise any claim or consent to and then only with the entry of any judgment with respect to which indemnification is being sought hereunder, including, but not limited to, with respect to Indemnified Misclassification Claims, without the prior written consent of the Indemnifying Party other party, which shall not be unreasonably withheld, conditioned or delayed (it being acknowledged provided that any settlement which is generally consistent with amounts of prior settlements of Misclassification Claims by the Company or any Company Subsidiary shall be deemed reasonable).
(d) If an Indemnified Party claims a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification Claim, such Indemnified Party shall send written notice have no obligation to consent to any settlement of such any claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after which imposes on the Indemnified Party has given such noticeany liability or obligation which cannot be assumed and performed in full by the Indemnifying Party, such and provided further that refusal of the Indemnified Party and to consent to any settlement agreed to by the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation or otherwise) and, within five (5) Business Days of the final determination of the merits and amount of such claim, (i) if limit the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in immediately available funds an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant HolderParty’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute obligation under this Article 15 to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h)terms refused by the Indemnified Party.
Appears in 1 contract
Sources: License Agreement (Neorx Corp)
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt by an a Purchaser Indemnified Party or a Seller Indemnified Party (hereinafter collectively referred to as an "Indemnified Party") of notice from by a third party of a threatened or filed any complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification is being sought hereunder, such Indemnified Party shall provide prompt written notice to Buyer notify Purchaser or the Equity HoldersSeller, whichever whoever is the appropriate indemnifying Party party hereunder (the “"Indemnifying Party”"), of such complaint or of the commencement of such action or proceeding; provided, however, that the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from liability for such claim arising otherwise than under this Agreement and such failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability which the Indemnifying Party may have hereunder with respect to such claim if, but only if, and only to the extent that, such failure to notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claim. The 33 Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty (30) days thereafterParty, to assume the defense of such Third Party Claimaction or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If In the event, however, that the Indemnifying Party declines or fails to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory to the Indemnified Party, in either case in a timely manner, then such Third Party Claim within such thirty (30) day period, however, the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if action or proceeding and the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will shall not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claimaction or proceeding. In any Third Party Claim action or Misclassification Claim proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter litigation and to retain its own counsel at such Party’s party's own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any matter action the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matteraction.
(cb) Subject to the provisions contained in Schedule 10.1(a)(iv), no No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunderhereunder without the prior written consent of the Indemnifying Party, includingunless such settlement, but not limited to, with respect to Indemnified Misclassification Claimscompromise or consent includes an unconditional release of the Indemnifying Party from all liability arising out of such claim. An Indemnifying Party may not, without the prior written consent of the Indemnifying Indemnified Party, settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder unless such settlement, compromise or consent includes an unconditional release of the Indemnified Party from all liability arising out of such claim and does not contain any equitable order, judgment or term which shall not be unreasonably withheldin any manner affects, conditioned restrains or delayed (it being acknowledged that any settlement which is generally consistent interferes with amounts the business of prior settlements of Misclassification Claims by the Company Indemnified Party or any Company Subsidiary shall be deemed reasonable)of the Indemnified Party's respective affiliates.
(dc) If In the event an Indemnified Party claims shall claim a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification ClaimAgreement, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation litigation, arbitration or otherwise) and, within five (5) Business Days business days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject shall deliver to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in Indemnified Party immediately available funds in an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h).
Appears in 1 contract
Sources: Asset Purchase Agreement (Horizon Medical Products Inc)
Indemnification Procedure. (a) The Buyer With respect to claims for Damages for which indemnification is believed by an Indemnified Party to be due by an Indemnifying Party under this Article VIII (including with respect to a Third Party Claim), the Indemnified Party shall have the right to control and defend, with counsel provide notice of its choosing reasonably acceptable such Damages to the Sellers’ RepresentativeIndemnifying Party (the “Claim Notice”), all claimsstating in reasonable detail the circumstances giving rise to the Damages, actionsspecifying the representation, suitswarranty, proceedingscovenant or agreement (if applicable) alleged to have been breached, arbitrationsspecifying (in good faith) the estimated amount of the Damages (if quantifiable), mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claimsand making a request for any payment then believed due for indemnification.
(b) Promptly after Following receipt by an Indemnified Party of notice from a third party of a threatened or filed complaint or the threatened or actual commencement of any auditsuch Claim Notice, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification hereunder, such Indemnified Party shall provide prompt written notice to Buyer or the Equity Holders, whichever is the appropriate indemnifying Party hereunder (the “Indemnifying Party”); provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement with respect have thirty calendar days to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the right, upon deliver a written notice delivered objecting to the Indemnified Party within thirty Party’s claims set forth in the Claim Notice (30) days thereafter, to assume the defense of such Third Party Claim, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel“Indemnification Objection Notice”). If the Indemnifying Party declines or fails to assume deliver an Indemnification Objection Notice within such 30 day period, such failure shall be an irrevocable acknowledgement and be deemed to be an agreement by the defense Indemnifying Party that the Indemnified Party shall be entitled to the full amount of the claim for Damages set forth in the Claims Notice, and the amount of such Third Damages shall be satisfied by the Company Stockholders in accordance with this Agreement and the Escrow Agreement.
(c) In the event the Indemnifying Party Claim delivers an Indemnification Objection Notice, both the Indemnified Party and the Indemnifying Party shall use commercially reasonable efforts to cooperate and arrive at a mutually acceptable resolution of such dispute within the next thirty (30) days. If a mutually acceptable resolution cannot be reached between the Indemnified Party and the Indemnifying Party within such thirty (30) day period, however, the Indemnified Party parties may employ counsel thereupon proceed to represent or defend it in pursue any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claim. In any Third Party Claim or Misclassification Claim with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter and to retain its own counsel available remedies at such Party’s own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of any matter the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.
(c) Subject to the provisions contained in Schedule 10.1(a)(iv), no Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder, including, but not limited to, with respect to Indemnified Misclassification Claims, without the prior written consent of the Indemnifying Party which shall not be unreasonably withheld, conditioned or delayed (it being acknowledged that any settlement which is generally consistent with amounts of prior settlements of Misclassification Claims by the Company or any Company Subsidiary shall be deemed reasonable)law.
(d) If an Indemnified Party claims a right to payment pursuant to For purposes of this Agreement not involving a Third Party Claim or a Misclassification Claim, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation or otherwise) and, within five (5) Business Days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicableSection 8.6, the Sellers’ Representative (shall act on behalf of the Equity HoldersCompany Indemnifying Parties and Company Indemnified Parties and (among other things) shall cause the Escrow Agent to, pay to Buyer in immediately available funds an amount equal to such claim as determined hereunder, give and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to receive all notices under this Section 2.8(h)8.6.
Appears in 1 contract
Sources: Merger Agreement (Streamline Health Solutions Inc.)
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt by an a Buyer Indemnified Party or a Seller Indemnified Party (hereinafter collectively referred to as an "INDEMNIFIED PARTY") of written notice from by a third party of a threatened or filed complaint claim or of the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification hereunderreceive payment from the other party for any Buyer Losses or Seller Losses (as the case may be), such Indemnified Party shall provide prompt written notice to notify Buyer (on the one hand) or Sellers (on the Equity Holdersother hand), whichever whoever is the appropriate indemnifying Party party hereunder (the “Indemnifying Party”"INDEMNIFYING PARTY"), within thirty (30) days of the written notice of threatening or filing of such claim or of the threatened or actual commencement of such action or proceeding; providedPROVIDED, howeverHOWEVER, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights actually and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to materially prejudices the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty (30) days thereafter, to assume the defense of such Third Party Claimaction or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If the Indemnifying Party declines or fails to assume the defense of such Third Party Claim within such thirty (30) day period, however, the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claim. In any Third Party Claim action or Misclassification Claim proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter litigation and to retain its own counsel at such Party’s party's own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any matter action the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matteraction.
(cb) Subject to the provisions contained in Schedule 10.1(a)(iv), no No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder, including, but not limited to, with respect to Indemnified Misclassification Claimshereunder without the prior written consent of the Indemnifying Party. An Indemnifying Party may not, without the prior written consent of the Indemnified Party, settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder unless (i) simultaneously with the effectiveness of such settlement, compromise or consent, the Indemnifying Party pays in full any obligation imposed on the Indemnified Party by such settlement, compromise or consent, which shall releases the Indemnified Party completely in connection with such settlement, compromise or consent and (ii) such settlement, compromise or consent does not be unreasonably withheldcontain any equitable order, conditioned judgment or delayed (it being acknowledged that term which in any settlement which is generally consistent manner affects, restrains or interferes with amounts the business of prior settlements of Misclassification Claims by the Company Indemnified Party or any Company Subsidiary shall be deemed reasonable)of the Indemnified Party's Affiliates.
(dc) If In the event an Indemnified Party claims shall claim a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification Claimthird party claim covered by Section 9.3(a), such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation litigation, arbitration or otherwise) and, within five (5) Business Days business days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in the Indemnified Party immediately available funds in an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h).
Appears in 1 contract
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt by an a Buyer Indemnified Party of notice from by a third party of a threatened or filed complaint claim or of the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Buyer Indemnified Party may be entitled to indemnification hereunderreceive payment from the other party for any Buyer Losses, such Buyer Indemnified Party shall provide prompt written notify Seller, within 30 days of the notice to Buyer of threatening or filing of such claim or of the Equity Holders, whichever is the appropriate indemnifying Party hereunder (the “Indemnifying Party”)threatened or actual commencement of such action or proceeding; provided, however, that the failure to so notify the Indemnifying Party Seller shall relieve the Indemnifying Party Buyer from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party Seller results in (i) the forfeiture by the Indemnifying Party Seller of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party Seller with respect to such claim. The Indemnifying Party Seller shall have the right, upon written notice delivered to the Buyer Indemnified Party within thirty (30) 30 days thereafter, to assume the defense of such Third Party Claimaction or proceeding, including the employment of counsel reasonably satisfactory to the Buyer Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If the Indemnifying Party declines or fails to assume the defense of such Third Party Claim within such thirty (30) day period, however, the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claim. In any Third Party Claim action or Misclassification Claim proceeding with respect to which indemnification is being sought hereunder, the Buyer Indemnified Party or the Indemnifying PartySeller, whichever is not assuming the defense of such action, shall have the right to participate in such matter litigation and to retain its own counsel at such Party’s party's own expense. The Indemnifying Party Seller or the Buyer Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party Seller or the Buyer Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any matter action the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matteraction.
(cb) Subject to the provisions contained in Schedule 10.1(a)(iv), no The Buyer Indemnified Party may not settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder, including, but not limited to, with respect to Indemnified Misclassification Claimshereunder without the prior written consent of Seller. Seller may not, without the prior written consent of the Indemnifying Buyer Indemnified Party, settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder unless (i) simultaneously with the effectiveness of such settlement, compromise or consent, Seller pays in full any obligation imposed on the Buyer Indemnified Party by such settlement, compromise or consent and (ii) such settlement, compromise or consent does not contain any equitable order, judgment or term which shall not be unreasonably withheldin any manner affects, conditioned restrains or delayed (it being acknowledged that any settlement which is generally consistent interferes with amounts the business of prior settlements of Misclassification Claims by the Company Buyer Indemnified Party or any Company Subsidiary shall be deemed reasonable)of the Buyer Indemnified Party's affiliates.
(dc) If an In the event the Buyer Indemnified Party claims shall claim a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification Claimthird party claim covered by Section 9.2(a), such the Buyer Indemnified Party shall send written notice of such claim to the appropriate Indemnifying PartySeller. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Buyer Indemnified Party has given such notice, such Buyer Indemnified Party and the appropriate Indemnifying Party Seller shall establish the merits and amount of such claim (by mutual agreement, litigation litigation, arbitration or otherwise) and, within five (5) Business Days business days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) Seller shall cause the Escrow Agent to, pay to the Buyer in Indemnified Party immediately available funds in an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h).
Appears in 1 contract
Sources: Asset Purchase Agreement (Rollins Truck Leasing Corp)
Indemnification Procedure. (ai) The Buyer Person seeking indemnification under this Section 8.1 (the “Indemnified Party”) shall have the right to control and defend, with counsel of its choosing reasonably acceptable give to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(bParty(ies) Promptly after receipt by an Indemnified Party of notice from a third party of a threatened or filed complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to whom indemnification hereunder, such Indemnified Party shall provide prompt written notice to Buyer or the Equity Holders, whichever is the appropriate indemnifying Party hereunder sought (the “Indemnifying Party”) prompt written notice (in the case of indemnification under Section 8.1(a), such notice shall be given to the Sole Member) of any third-party claim which may give rise to any indemnity obligation under this Section 8.1, and the Indemnifying Party will have the right to assume the defense of any such claim through counsel of its own choosing, by so notifying the Indemnified Party within ten (10) days of receipt of the Indemnified Party’s written notice; provided, however, that such counsel shall be reasonably satisfactory to the Indemnified Party. Failure of the Indemnified Party to give prompt notice shall not affect the Indemnifying Party’s indemnification obligations hereunder except to the extent the Indemnifying Party is materially prejudiced by such failure. If the Indemnified Party desires to participate in any such defense assumed by the Indemnifying Party, it may do so at its sole cost and expense; provided, however, that the failure Indemnified Party will be entitled to so notify participate in any such defense with separate counsel at the expense of the Indemnifying Party shall relieve if, in the reasonable judgment of counsel to the Indemnified Party, a conflict or potential conflict exists, or there are separate or additional defenses available to the Indemnified Party, that would make such separate representation advisable. If the Indemnifying Party from liability under this Agreement with respect declines to assume any such claim only ifdefense or fails to diligently pursue any such defense, and only to the extent that, such failure to notify then the Indemnifying Party results in (i) the forfeiture will be liable for all reasonable costs and expenses incurred by the Indemnifying Indemnified Party in connection with investigating, defending, settling and/or otherwise dealing with such claim, including reasonable fees and disbursements of material rights and defenses otherwise available counsel. The Parties agree to cooperate with each other in connection with the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to defense of any such claim. The Indemnifying Party shall have will not, without the right, upon prior written notice delivered to the Indemnified Party within thirty (30) days thereafter, to assume the defense consent of such Third Party Claim, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If the Indemnifying Party declines or fails to assume the defense of such Third Party Claim within such thirty (30) day period, however, the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claim. In any Third Party Claim or Misclassification Claim with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter and to retain its own counsel at such Party’s own expense. The Indemnifying Party or the Indemnified Party, as the case may besettle, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Partycompromise, as the case may be, reasonably apprised of the status of any matter the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.
(c) Subject to the provisions contained in Schedule 10.1(a)(iv), no Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunderany such claim, includingunless such settlement, but compromise or judgment (A) does not limited toresult in the imposition of a consent order, with respect to injunction or decree that would restrict the future activity or conduct of the Indemnified Misclassification ClaimsParty or any Affiliate thereof, (B) does not involve any remedies other than monetary damages, and (C) includes an unconditional release of the Indemnified Party and its Affiliates for all liability arising out of such claim and any related claim. The Indemnified Party will not, without the prior written consent of the Indemnifying Party Party, which shall will not be unreasonably withheld, conditioned delayed or delayed (it being acknowledged that conditioned, settle, compromise, or consent to the entry of any settlement which is generally consistent judgment with amounts of prior settlements of Misclassification Claims by the Company or respect to any Company Subsidiary shall be deemed reasonable)such claim.
(dii) If an indemnification claim by any Indemnified Party claims a right to payment pursuant to this Agreement is not involving a Third disputed by the Indemnifying Party Claim or a Misclassification Claim, such Indemnified Party shall send within thirty (30) days after the Indemnifying Party’s having received written notice thereof, or has been resolved by a Law of such a governmental entity, by a settlement of the indemnification claim to in accordance with Section 8.1(c)(i) or by agreement of the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish (any of the merits and foregoing, a “Resolution”), then (A) in the case of indemnification under Section 8.1(b), Parent will pay to the Member Indemnified Party promptly following such Resolution an amount in cash equal to the Losses of such claim Member Indemnified Party as set forth in such Resolution, or (by mutual agreementB) in the case of indemnification under Section 8.1(a), litigation or otherwise) and, within five (5) Business Days of the final determination of the merits and amount Parent will deliver evidence of such claimResolution to the Sole Member, (i) if whereupon the Indemnifying Sole Member will deliver to the Parent Indemnified Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in immediately available funds an amount equal to the Losses of such claim Parent Indemnified Party as determined hereunder, and (ii) if set forth in such Resolution. At the Indemnifying Party is election of the BuyerSole Member, the Buyer shall pay amount to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute be delivered to the Option Holders Parent Indemnified Party in accordance with their respective Pro Rata Percentages the immediately preceding sentence may be deducted from the Earn-Out Payments, if any. Except as otherwise specifically provided in Section 8.1(d), the depletion of the Earn-Out Payments, if any, will not serve as a bar to recovery by the Parent Indemnified Parties from the Sole Member of any indemnifiable Losses, and subject the Parent Indemnified Parties will be entitled to look directly to the Sole Member for any Losses in excess of the such amounts, and such Losses will be the obligations of the Sole Member as provided in Section 2.8(h)8.1(a) and will be paid to the applicable Parent Indemnified Party promptly following such Resolution.
Appears in 1 contract
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after following receipt by an Indemnified Party of notice from by a third party (including any Governmental Entity) of a threatened or filed any complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification hereunderreceive payment from the other Party for any Purchaser Loss or any Seller Loss (as the case may be), such Indemnified Party shall provide prompt written notice to Buyer notify the Purchaser Parent or the Equity HoldersSeller Parent, whichever is as the appropriate indemnifying Party hereunder case may be (the “Indemnifying Party”), promptly following the Indemnified Party’s receipt of such complaint or notice of the commencement of such audit, investigation, action or proceeding; provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement hereunder with respect to such claim only if, and only to the extent that, such failure to so notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty twenty (3020) days thereafterthereafter assuming full responsibility for any Purchaser Losses or Seller Losses (as the case may be) resulting from such audit, investigation, action or proceeding, to assume the defense of such Third Party Claimaudit, investigation, action or proceeding, to the extent such audit, investigation, action or proceeding involves solely monetary damages, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel; provided, however, that an Indemnifying Party will not be entitled to assume the defense of any audit, investigation, action or proceeding if (i) such claim could result in criminal liability of, or equitable remedies against, the Indemnified Party; or (ii) the Indemnified Party reasonably believes that the interests of the Indemnifying Party and the Indemnified Party with respect to such claim are in conflict with one another, and as a result, the Indemnifying Party could not adequately represent the interests of the Indemnified Party in such claim. If In the event, however, that the Indemnifying Party declines or fails to assume, or is not permitted to assume, the defense of the audit, investigation, action or proceeding on the terms provided above or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such twenty (20)-day period, or if the Indemnifying Party is not entitled to assume the defense of the audit, investigation, action or proceeding in accordance with the preceding sentence, then such Third Party Claim within such thirty (30) day period, however, the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim andaudit, if investigation, action or proceeding and the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will shall pay the reasonable fees and disbursements of such counsel for the Indemnified Party as incurred; provided, however, that the Indemnifying Party will shall not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claimaudit, investigation, action or proceeding. In any Third Party Claim audit, investigation, action or Misclassification Claim with respect to proceeding for which indemnification is being sought hereunder, hereunder the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter and to retain its own counsel at such Party’s own expense. The Indemnifying Party or the Indemnified Party, Party (as the case may be, ) shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, Party (as the case may be, ) reasonably apprised of the status of the defense of any matter the defense of which they are it is maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.
(cb) Subject to the provisions contained in Schedule 10.1(a)(iv), no No Indemnified Party may settle or compromise any audit, investigation, action or proceeding or consent to the entry of any judgment with respect to which indemnification is being sought hereunder without the prior written consent of the Indemnifying Party, unless (i) the Indemnifying Party fails to assume, or is not permitted to assume, and maintain the defense of such claim pursuant to Section 11.3(a) or (ii) such settlement, compromise or consent includes an unconditional release of the Indemnifying Party and its officers, directors, managers, employees and Affiliates from all liability arising out of such claim. An Indemnifying Party may not, without the prior written consent of the Indemnified Party, settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunderhereunder unless such settlement, including, but not limited to, with respect to Indemnified Misclassification Claims, without the prior written compromise or consent (A) includes an unconditional release of the Indemnifying Indemnified Party which shall and its officers, directors, managers, employees and Affiliates from all liability arising out of such claim, (B) does not be unreasonably withheldcontain any admission or statement suggesting any wrongdoing or liability on behalf of the Indemnified Party and (C) does not contain any equitable order, conditioned judgment or delayed (it being acknowledged term that in any settlement which is generally consistent manner affects, restrains or interferes with amounts the business of prior settlements of Misclassification Claims by the Company Indemnified Party or any Company Subsidiary shall be deemed reasonable)of the Indemnified Party’s Affiliates.
(dc) If In the event an Indemnified Party claims a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification ClaimAgreement, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after The failure by any Indemnified Party to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability that it may have to such Indemnified Party with respect to any claim made pursuant to this Section 11.3(c). In the event the Indemnifying Party does not notify the Indemnified Party within thirty (30) days following its receipt of such notice that the Indemnifying Party disputes its liability to the Indemnified Party under this Article XI or the amount thereof, the claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party under this Article XI, and the Indemnifying Party shall pay the amount of such liability to the Indemnified Party on demand or, in the case of any notice in which the amount of the claim (or any portion of the claim) is estimated, on such later date when the amount of such claim (or such portion of such claim) becomes finally determined. In the event the Indemnifying Party has given timely disputed its liability with respect to such noticeclaim as provided above, as promptly as possible, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation litigation, arbitration or otherwise) and, within five (5) Business Days of following the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer the Indemnified Party in immediately available funds an amount equal to such claim as determined hereunder.
(d) Any indemnification obligation of the Seller Parent pursuant to this Article XI shall be satisfied directly by the Seller Parent; provided, however, subject to the limitations set forth in Sections 11.4 and 11.5, the Purchasers may set-off against all or a portion of any payment of the Earn-Out Consideration otherwise due and owing any amount finally determined to be owed by the Seller Parent to any Purchaser Indemnified Party under the indemnification obligations set forth in this Article XI. Each Seller agrees and acknowledges that the Purchasers’ right to set-off shall be a non-exclusive remedy and shall be in addition to any other available remedies, and any assertion of such right to set-off shall not be deemed an election of legal or equitable remedies.
(iie) if For the Indemnifying Party is avoidance of doubt, claims relating to the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf determination of the Stockholders and the Warrant HolderEarn-Out Consideration shall be governed by Section 3.6.
(f) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute Notwithstanding anything to the Option Holders contrary in accordance with their respective Pro Rata Percentages this Agreement, for purposes of calculating Purchaser Losses or Seller Losses, as applicable, all applicable representations and subject warranties shall be read without reference to Section 2.8(h)materiality, Material Adverse Effect or similar monetary and non-monetary qualifications.
Appears in 1 contract
Sources: Purchase Agreement (University General Health System, Inc.)
Indemnification Procedure. All claims for indemnification under this Section 10 shall be asserted and resolved as follows:
(a) Party's sole discretion and, if it is ultimately determined that the Indemnifying Party is responsible therefor under this Section 10, then the Indemnified Party shall be entitled to recover from the Indemnifying Party the amount of any judgment and, subject to Section 10.8(c) hereof, all indemnifiable costs and expenses of the Indemnified Party with respect thereto, including without limitation interest as provided in Section 10.7 hereof.
(b) If the Indemnified Party elects to defend any such claim or demand or the Indemnifying Party elects not to defend such claim or demand, then the Indemnified Party covenants to diligently defend any such claim or demand to the full extent an experienced, prudent businessperson would in the circumstances. The Buyer Indemnified Party shall, prior to entering into any settlement of any such claim or demand, provide the Indemnifying Party with full particulars of such proposed settlement and obtain in writing the approval of such Indemnifying Party to such settlement, such approval to not be unreasonably withheld. The Indemnified Party shall have the right to control the defense of any such claim or demand and defendthe amount of any judgment and, with counsel subject to Section 10.8(c) hereof, the reasonable costs and expenses of its choosing reasonably acceptable to defense shall be included as part of the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt by an indemnification obligations of the Indemnifying Party hereunder. If the Indemnified Party of notice from a third party of a threatened or filed complaint or the threatened or actual commencement of any auditshould elect to exercise such right, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification hereunder, such Indemnified Party shall provide prompt written notice to Buyer or the Equity Holders, whichever is the appropriate indemnifying Party hereunder (the “Indemnifying Party”); provided, however, that the failure to so notify the Indemnifying Party shall relieve be consulted by the Indemnifying Indemnified Party from liability under this Agreement on an ongoing basis with respect to such claim only if, and only all material issues related to the extent that, such failure to notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty (30) days thereafter, to assume the defense of such Third Party Claimclaim or demand, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If the Indemnifying Party declines or fails to assume the defense of such Third Party Claim within such thirty (30) day period, however, the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claim. In any Third Party Claim or Misclassification Claim with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter and to retain its own counsel at such Party’s own expense. The Indemnifying Party or the Indemnified Partyin, as the case may bebut not control, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of any matter the defense of which they are maintaining such claim or demand at the sole cost and to cooperate in good faith with each other with respect to expense of the defense of any such matterIndemnifying Party.
(c) Subject Notwithstanding any other provisions of Section 10 of this Agreement, the Indemnifying Party's obligation to indemnify the provisions contained in Schedule 10.1(a)(iv), no Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification the reasonable costs and expenses incurred by the Indemnified Party in defending any particular claim or demand, is being sought hereundersubject to the following qualifications and limitations:
(i) all such costs and expenses must be reasonable given the nature and extent of such claim or demand ; and given the nature and extent of the relevant defense,
(ii) prior to retaining any professional services in connection with the defense of such claim or demand, includingthe Indemnified Party shall first advise the Indemnifying Party of the need for such professional services, but not limited toshall consult with the Indemnifying Party regarding the identity and the expected fees of the professional to be retained and shall, to the extent possible, acting reasonably, come to a mutual agreement with the Indemnifying Party regarding the professional to be retained, and
(iii) all such costs and expenses incurred with respect to Indemnified Misclassification Claims, without the prior written consent provision of the Indemnifying Party which shall not be unreasonably withheld, conditioned or delayed (it being acknowledged that any settlement which is generally consistent with amounts of prior settlements of Misclassification Claims by the Company or any Company Subsidiary legal services shall be deemed reasonable).
(d) If an Indemnified Party claims a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification Claim, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation or otherwise) and, within five (5) Business Days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in immediately available funds an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h)taxation.
Appears in 1 contract
Sources: Securities Purchase Agreement (Venture Seismic LTD)
Indemnification Procedure. (a) The Buyer party seeking indemnification under this Agreement (the "Indemnified Party") shall have promptly notify the right to control party from which indemnification is being sought (the "Indemnifying Party") of the facts and defend, with counsel of its choosing reasonably acceptable to circumstances upon which the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt by an Indemnified Party of notice from intends to base a third party of a threatened or filed complaint or claim for indemnification hereunder ("Notices"). Notice shall in all events be considered prompt if given (1) no later than 15 days after the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled learns of the facts upon which it will claim such indemnification or (2) if earlier, in sufficient time to indemnification hereunder, such Indemnified allow the Indemnifying Party shall provide prompt written notice to Buyer or the Equity Holders, whichever is the appropriate indemnifying Party hereunder (the “Indemnifying Party”)exercise its rights pursuant to this Section 9.03; provided, however, that the failure to provide such Notice of claims promptly (so notify long as a notice of claims is given before the date on which the applicable representation or warranty ceases to survive) shall not affect the obligations of the Indemnifying Party shall relieve hereunder except to the extent the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claimis prejudiced thereby. The Indemnifying Party shall have the right, upon written notice delivered at its own cost, to participate jointly in the defense of any third-party claim, demand, lawsuit or other proceeding in connection with which the Indemnified Party within thirty (30) days thereafterhas claimed indemnification hereunder, and may elect to assume take over the defense of such Third Party Claim, including the employment claim within 10 business days following Notice thereof upon its written unconditional acknowledgment of counsel reasonably satisfactory its obligation to indemnify the Indemnified Party (and with respect to such claim; provided, however, that Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory permitted, at its option, to require that Seller shall not take over the defense of any claim brought by any customer or supplier of the Business against any member of Buyer's Indemnified Group for which indemnification is available pursuant to this Article IX, and upon exercise of such option such member of Buyer's Indemnified Group shall defend such claim, subject to the following conditions: (i) Seller shall be entitled, in its sole discretion and at its expense, to engage counsel and to participate in any discussions, meetings, negotiations and other communications which may be held or conducted between such member of Buyer's Indemnified Party if Buyer Group and such customer or supplier, or their respective counsels, with respect to such claim; (ii) such member of Buyer's Indemnified Group shall consult with Seller before making or communicating to such customer or supplier, or its counsel, any decisions concerning such member's strategy or position with respect to the defense of such claim; (iii) such member of Buyer's Indemnified Group shall not settle or otherwise dispose of such claim without the consent of Seller, which consent shall not be unreasonably withheld or delayed; and (iv) any indemnification that is the ultimately determined to be owing by Seller to such member of Buyer's Indemnified Party) and the payment Group as a result of the fees and disbursements settlement or other disposition of such counselclaim (but only if the option to require that Seller not take over the defense of such claim is exercised) shall be limited to 80% of the otherwise indemnifiable Loss with respect to such claim. If the Indemnifying Party declines or fails to assume the defense of makes such Third Party Claim within such thirty an election, (30x) day period, however, it shall keep the Indemnified Party may employ counsel informed as to represent or defend it in any the status of such Third Party Claim andmatter and shall send promptly copies of all pleadings to the Indemnified Party, if the Indemnifying Party agrees that such Third Party Claim is a matter (y) with respect to which any issue involved in such claim, it shall have the Indemnified Party is entitled sole right, with respect to receive payment from the Indemnifying Party for the Loss in questionclaims or portions of claims seeking monetary damages only, the Indemnifying Party will pay the reasonable fees and disbursements to settle or otherwise dispose of such counsel claim on such terms as incurredit, in its sole discretion, shall deem appropriate; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements consent of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claim. In any Third Party Claim or Misclassification Claim with respect to which indemnification is being sought hereunder, the Indemnified Party to the settlement or disposition shall be required if such settlement or disposition shall result in or would reasonably be expected to result in any liability to, equitable relief against or adverse business effect on the Indemnifying Indemnified Party, whichever is which consent shall not assuming be unreasonably withheld or delayed, and (z) the defense of such action, Indemnified Party shall have the right to participate jointly in the defense of such matter claim, but shall do so at its own cost not subject to reimbursement under Section 9.02. If the Indemnifying Party does not elect to take over the defense of a third-party claim, the Indemnified Party shall have the right to contest, compromise or settle such claim in the exercise of its reasonable judgment; provided, however, that the consent of the Indemnifying Party to any compromise or settlement of such claim shall be required if such compromise or settlement shall result in or would reasonably be expected to result in any liability to the Indemnifying Party, which consent shall not be unreasonably withheld or delayed.
(i) With respect to Seller's indemnification obligations pursuant to Section 9.02(b)(i) (but only with respect to breaches of representations and warranties set forth in Section 2.12(a)(vii)) or pursuant to Section 9.02(b)(iv), and subject to subsection (iii) below, Seller shall manage and control all response actions and/or claims, including, without limitation, the right to retain consultants and counsel, to control all investigations, cleanup, response, remediation and associated activities, and to negotiate, litigate, otherwise contest or settle any claim relating thereto. Seller may settle any claim with respect to any matters contemplated by this subsection (i), provided that such settlement does not result in any impairment to the Business, or liability or cost to, restrictions on or admission by Buyer.
(ii) With respect to Seller's indemnification obligations pursuant to Section 9.02(b)(i) with respect to breaches of representations and warranties set forth in Section 2.12 (other than Section 2.12(a)(vii)) or pursuant to Section 9.02(b)(v), and subject to subsection (iii) below, Buyer shall manage and control all response actions and/or claims, including, without limitation, the right to retain its own counsel at such Party’s own expenseconsultants and counsel, to control all investigations, cleanup, response, remediation and associated activities, and to negotiate, litigate, otherwise contest or settle any claim relating thereto; provided, in the case of any claims brought by private parties alleging common law damage claims, Buyer agrees to consult with Seller in connection with the formulation and implementation of any litigation strategy. The Indemnifying Party Buyer may settle any claim with respect to any matters contemplated by this subsection (ii), provided Seller consents in writing thereto, which consent shall not be unreasonably withheld or the Indemnified Partydelayed.
(iii) With respect to all matters contemplated by subsections (i) and (ii) above, Buyer or Seller, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of any matter the defense of which they are maintaining and to cooperate in good faith with each other with respect to any matter managed and controlled by the defense other, shall have the right to (i) participate, at its own expense, in any meetings or material negotiations with governmental agencies, private claimants or consultants and shall be provided with reasonable advance written notice of the same; and (ii) review in advance and provide comments on any documents proposed to be submitted to governmental agencies or other claimants.
(iv) Buyer and Seller each agree to cooperate with the other to ensure that the obligations of Seller created by Section 9.02(b)(i) with respect to breaches of representations and warranties set forth in Sections 2.12, 9.02(b)(iv) and 9.02(b)(v) are carried out in a reasonably timely matter. Buyer and Seller each agree to provide the other with such matterinformation as may be reasonably requested in writing regarding such obligations, including, without limitation, providing reasonable access to and the right to copy all relevant data, records, studies, reports or other documents. Buyer and Seller each agree to provide the other with reasonable access to each other's employees on a mutually convenient basis in connection with such efforts.
(c) Subject to Notwithstanding the provisions contained in Schedule 10.1(a)(ivof Section 9.03(a), no Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder, including, but not limited to, with respect to Indemnified Misclassification Claims, without the prior written consent of any third-party claim or demand that the Indemnifying Party which shall not be unreasonably withheldis defending, conditioned or delayed (it being acknowledged that any settlement which is generally consistent with amounts of prior settlements of Misclassification Claims by the Company or any Company Subsidiary shall be deemed reasonable).
(d) If an Indemnified Party claims a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification Claim, such Indemnified Party shall send written notice have the right to retain separate counsel to represent it and the Indemnifying Party shall pay the fees and expenses of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after separate counsel if the Indemnified Party receives and certifies to Seller that it has given such notice, such received an opinion of counsel to the effect that there exist sufficient conflicts that make it reasonably necessary for separate counsel to represent the Indemnified Party and the appropriate Indemnifying Party Party. The certificate shall establish the merits and amount attach a copy of such claim (by mutual agreement, litigation or otherwise) and, within five (5) Business Days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in immediately available funds an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h)opinion.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Gulfstream Aerospace Corp)
Indemnification Procedure. (a) The Buyer If any Third Party Claim is brought against a party entitled to indemnification under this Section 9 (each, an “Indemnified Party”), such Indemnified Party or Parties shall have promptly notify the right party obligated to control and defend, with counsel provide indemnification (an “Indemnifying Party”) in writing of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claimsinstitution of such Third Party Claim.
(b) Promptly after upon receipt by an Indemnified Party of notice from a third party of a threatened or filed complaint or the threatened or actual commencement of any auditnotice, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification hereunder, such Indemnified Party shall provide prompt written notice to Buyer or the Equity Holders, whichever is the appropriate indemnifying Party hereunder (the “Indemnifying Party”); provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty (30) days thereafter, to promptly assume the defense of such Third Party Claim, Claim including the employment of counsel reasonably satisfactory to the such Indemnified Party (or Parties, and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the payment of expenses. An Indemnified Party if Buyer is or Parties shall have the Indemnified Party) and the payment of right to employ its or their own counsel in any such case, but the fees and disbursements expenses of such counsel. If counsel shall be at the expense of such Indemnified Party or Parties, unless:
(i) the employment of such counsel shall have been authorized in writing by the Indemnifying Party declines or fails to assume in connection with the defense of such Third Party Claim within action; or
(ii) the named parties to such thirty (30) day period, however, action include both the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if Parties and the Indemnifying Party agrees and such Indemnified Party or Parties shall have reasonably concluded that there may be one or more legal defenses available to it or them or to other Indemnified Parties which are different from, or in addition to, those available to the Indemnifying Party. In either of the foregoing events in clauses (i) or (ii), such Third fees and expenses shall be borne by the Indemnifying Party Claim is a matter with respect and the Indemnifying Party shall not have the right to which direct the defense of such action on behalf of the Indemnified Party is entitled or Parties. Notwithstanding anything to receive payment from the contrary set forth herein, under no circumstances shall the Indemnifying Party be obligated to assume responsibility for the Loss in question, the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of expenses for more than one counsel for all the Indemnified Parties Parties.
(c) Notwithstanding anything contained in this Section 9 to the contrary, the Indemnifying Party shall not be liable for any jurisdiction in settlement of any single Third Party Claim. In any such Third Party Claim or Misclassification Claim with respect to effected without its written consent, which indemnification is being sought hereunder, the Indemnified consent shall not be unreasonably withheld. The Indemnifying Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter and to retain its own counsel at such Party’s own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of any matter the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.
(c) Subject to the provisions contained in Schedule 10.1(a)(iv), no Indemnified Party may settle or compromise any claim Third Party Claim, or permit a default or consent to the entry of judgment in, or otherwise seek to terminate, any judgment with pending or threatened Third Party Claim, in respect to of which indemnification indemnity may be sought hereunder (whether or not any Indemnified Party is being sought hereundera party thereto), includingprovided such settlement, but compromise, consent, or termination includes an unconditional release of each Indemnified Party from all liability in respect of such Third Party Claim. In the event such an unconditional release is not limited toobtainable for each Indemnified Party, with respect to Indemnified Misclassification Claims, without then the Indemnifying Party must obtain the prior written consent of any Indemnified Party not so released before the Indemnifying Party which shall not be unreasonably withheldmay enter into such settlement, conditioned compromise, consent or delayed (it being acknowledged that any settlement which is generally consistent with amounts of prior settlements of Misclassification Claims by the Company or any Company Subsidiary shall be deemed reasonable)termination.
(d) If an Indemnified Party claims a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification Claim, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation or otherwise) and, within five (5) Business Days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in immediately available funds an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h).
Appears in 1 contract
Sources: Master Production Services Agreement (Candel Therapeutics, Inc.)
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt A claim for indemnification for any matter not involving a third-party claim may be asserted by an Indemnified Party of notice from a third party of a threatened or filed complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party that may be entitled to indemnification hereunder, such pursuant to this Section 4 (the “Indemnified Party”) to the Party shall that may be obligated to provide prompt written notice indemnification pursuant to Buyer or the Equity Holders, whichever is the appropriate indemnifying Party hereunder this Section 4 (the “Indemnifying Party”); provided, provided however, that the failure to so notify the Indemnifying Party shall relieve not release, waive or otherwise affect the Indemnifying Party’s obligations with respect thereto, except to the extent that the Indemnifying Party from liability can demonstrate actual loss and prejudice as a result of such failure. The notice of claim shall state in reasonable detail the basis of the claim for indemnification.
(b) If any legal proceedings shall be instituted or any claim or demand shall be asserted by any third party in respect of which indemnification may be sought under this Agreement with respect to such claim only ifSection 4.1 or Section 4.2 (a “Third Party Claim”), and only the Indemnified Party shall promptly give written notice of the assertion of the Third Party Claim to the extent thatIndemnifying Party; provided however, such that failure of the Indemnified Party to so notify the Indemnifying Party results in (i) shall not release, waive or otherwise affect the forfeiture by Indemnifying Party’s obligations with respect thereto, except to the extent that the Indemnifying Party can demonstrate actual loss and prejudice as a result of material rights and defenses otherwise available such failure. Subject to the Indemnifying Party with respect to such claim or (ii) material prejudice to provisions of this Section 4.2, the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the right, upon written notice delivered at its sole expense, to be represented by counsel of its choice, which must be reasonably satisfactory to the Indemnified Party, and to defend against, negotiate, settle or otherwise deal with any Third Party Claim which relates to any losses indemnified against by it hereunder; provided that, in order to defend against, negotiate, settle or otherwise deal with any such Third Party Claim, the Indemnifying Party must first acknowledge in writing to the Indemnified Party its unqualified obligation to indemnify the Indemnified Party as provided hereunder. Notwithstanding the preceding sentence, the Indemnifying Party shall not have the right to defend against, negotiate, settle, or otherwise deal with any Third Party Claim (i) if the Third Party Claim is not solely for monetary damages (except where any non-monetary relief being sought is merely incidental to a primary claim for monetary damages), (ii) if the Third Party Claim involves criminal allegations, or (iii) if the Indemnifying Party fails to prosecute or defend, actively and diligently, the Third Party Claim. If the Indemnifying Party elects to defend against, negotiate, settle or otherwise deal with any Third Party Claim, it shall within fifteen (15) days of the Indemnified Party’s written notice of the assertion of such Third Party Claim (or sooner if the nature of the Third Party Claim so requires) notify the Indemnified Party of its intent to do so; provided that, the Indemnifying Party must conduct its defense of the Third Party Claim actively and diligently thereafter in order to preserve its rights in this regard. If the Indemnifying Party elects not to defend against, negotiate, settle, or otherwise deal with any Third Party Claim, fails to notify the Indemnified Party of its election as herein provided or contests its obligation to indemnify the Indemnified Party for losses relating to such Third Party Claim under this Agreement, the Indemnified Party may defend against, negotiate, settle, or otherwise deal with such Third Party Claim. If the Indemnified Party defends any Third Party Claim, then the Indemnifying Party shall reimburse the Indemnified Party for the expenses of defending such Third Party Claim upon submission of periodic bills, which reimbursement shall be made within thirty (30) days thereafterof the applicable submission. If the Indemnifying Party shall assume the defense of any Third Party Claim, to assume the Indemnified Party may participate, at his, her or its own expense, in the defense of such Third Party Claim, including ; provided that such Indemnified Party shall be entitled to participate in any such defense with separate counsel at the employment expense of the Indemnifying Party if (A) so requested by the Indemnifying Party to participate or (B) in the reasonable opinion of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to a conflict or potential conflict exists between the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If the Indemnifying Party declines or fails to assume the defense of that would make such Third Party Claim within such thirty (30) day period, however, the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurredseparate representation advisable; provided, howeverprovided further, that the Indemnifying Party will shall not be required to pay the fees and disbursements of for more than one such counsel (plus any appropriate local counsel) for all Indemnified Parties in any jurisdiction in connection with any single Third Party Claim. In Each Party shall provide reasonable access to each other party to such documents and information as may reasonably be requested in connection with the defense, negotiation or settlement of any Third Party Claim. Notwithstanding anything in this Section 4.2 to the contrary, the Indemnifying Party shall not enter into any settlement of any Third Party Claim or Misclassification Claim with respect to which indemnification is being sought hereunder, without the written consent of the Indemnified Party or if such settlement (1) would create any liability of the Indemnifying Party, whichever Indemnified Party for which the Indemnified Party is not assuming the defense of such actionentitled to indemnification hereunder, shall have the right to participate in such matter and to retain its own counsel at such Party’s own expense. The Indemnifying Party (2) would provide for any injunctive relief or other non-monetary obligation affecting the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or (3) does not include an unconditional release of the Indemnified Party, as the case may be, reasonably apprised Party from all liability in respect of the status of any matter the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matterThird Party Claim.
(c) Subject After any final decision, judgment or award shall have been rendered by a governmental entity of competent jurisdiction and the expiration of the time in which to appeal therefrom, or a settlement shall have been consummated, or the provisions contained in Schedule 10.1(a)(iv), no Indemnified Party may settle or compromise any claim or consent to and the entry of any judgment Indemnifying Party shall have arrived at a mutually binding agreement, in each case with respect to which indemnification is being sought hereundera Third Party Claim, including, but not limited to, with respect the Indemnified Party shall forward to Indemnified Misclassification Claims, without the prior written consent of the Indemnifying Party which shall not be unreasonably withheld, conditioned or delayed (it being acknowledged that notice of any settlement which is generally consistent with amounts of prior settlements of Misclassification Claims sums due and owing by the Company or any Company Subsidiary shall be deemed reasonable).
(d) If an Indemnified Indemnifying Party claims a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification Claim, with respect to such Indemnified matter and the Indemnifying Party shall send written notice pay all of such claim remaining sums so due and owing to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount by wire transfer of such claim (by mutual agreement, litigation or otherwise) and, immediately available funds within five (5) Business Days of business days after the final determination of the merits and amount date of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in immediately available funds an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h)notice.
Appears in 1 contract
Indemnification Procedure. If either Party is seeking indemnification under Sections 10.1 or 10.2 (a) The Buyer the “Indemnified Party”), it shall have inform in writing the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt by an Indemnified other Party of notice from a third party of a threatened or filed complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification hereunder, such Indemnified Party shall provide prompt written notice to Buyer or the Equity Holders, whichever is the appropriate indemnifying Party hereunder (the “Indemnifying Party”); provided) of the claim giving rise to the obligation to indemnify pursuant to such Section [* * *] after receiving written notice of the claim (it being understood and agreed, however, that the failure or delay by an Indemnified Party to so notify give such notice of a claim shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, have been actually and only to the extent that, materially prejudiced as a result of such failure or delay to notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claimgive notice). The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty (30) days thereafter, right to assume the defense of any such Third Party Claim, including the employment of counsel reasonably satisfactory claim for which it is obligated to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is indemnify the Indemnified Party) and the payment of the fees and disbursements of such counsel. If The Indemnified Party shall cooperate with the Indemnifying Party declines or fails to assume and the defense of such Third Party Claim within such thirty (30) day period, however, the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if Indemnifying Party’s insurer as the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in questionmay reasonably request, the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claim. In any Third Party Claim or Misclassification Claim with respect to which indemnification is being sought hereunder, the Indemnified Party or at the Indemnifying Party, whichever is not assuming the defense of such action, ’s cost and expense. The Indemnified Party shall have the right to participate in such matter and to retain participate, at its own expense and with counsel at such of its choice, in the defense of any claim that has been assumed by the Indemnifying Party’s own expense. The Indemnifying Party or may not enter into any settlement without the Indemnified Party’s written consent, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of any matter the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.
(c) Subject to the provisions contained in Schedule 10.1(a)(iv), no Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder, including, but not limited to, with respect to Indemnified Misclassification Claims, without the prior written consent of the Indemnifying Party which shall not be unreasonably withheld, conditioned or delayed delayed. If the Indemnifying Party does not assume and conduct the defense of the claim as provided above: (it being acknowledged that any settlement which is generally consistent with amounts of prior settlements of Misclassification Claims by the Company or any Company Subsidiary shall be deemed reasonable).
(di) If an Indemnified Party claims a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification Claim, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such may assume and conduct the defense of the claim at the Indemnifying Party’s expense; (ii) the Indemnified Party may consent to the entry of any judgment or enter into any settlement with respect to the claim in any manner the Indemnified Party may deem reasonably appropriate (and the appropriate Indemnifying Indemnified Party shall establish the merits and amount of such claim (by mutual agreementneed not consult with, litigation or otherwise) andobtain any consent from, within five (5) Business Days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(sin connection therewith), provided that such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf judgement or settlement shall not include any admission or acknowledgement of liability or fault of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in immediately available funds an amount equal to Indemnified Party as a condition of such claim as determined hereunder, judgement or settlement; and (iiiii) if the Indemnifying Party is will remain responsible to indemnify the BuyerIndemnified Party for Losses as provided in this Section 10.If the Parties cannot agree as to the application of Sections 10.1 or 10.2 as to any claim, pending resolution of the dispute pursuant to Article 13, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage Parties may conduct separate defenses of such claims, with each Party retaining the right to claim as determined hereunder in immediately available funds and (B) indemnification from the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders other Party in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h)Sections 10.1 or 10.2 upon resolution of the underlying claim.
Appears in 1 contract
Sources: License and Collaboration Agreement (Verastem, Inc.)
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt by an a Buyer Indemnified Party or a Sellers Indemnified Party (hereinafter referred to as, the "Indemnified Party") of notice from by a third party of a threatened or filed complaint any claim or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) Action with respect to which such Indemnified Party DB03/0502991.0020/10136186.1 WP01 may be entitled to indemnification hereunderreceive payment from the other party for any Losses, such Indemnified Party shall provide prompt written notice to shall, within ten (10) days, notify Buyer or the Equity HoldersSellers, whichever is as the appropriate indemnifying Party hereunder party or representative thereof (the “"Indemnifying Party”"), of such third-party claim or of the commencement of such Action; provided, however, that the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from liability Liability for such third-party claim arising otherwise than under this Agreement and such failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from Liability under this Agreement with respect to such third-party claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of any material rights and or defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to third-party claim. Unless the Indemnifying Party with respect is also a party to such claim. The third-party claim and the Indemnified Party determines in good faith after conferring with its outside counsel that joint representation would be inappropriate, the Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty twenty (3020) days thereafterthereafter (or, if earlier, by the tenth (10th) day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the Person asserting such claim), to assume the defense of such Third Party ClaimAction, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If In the event, however, that the Indemnifying Party declines or fails to assume the defense of such Third Party Claim the Action or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such thirty 20-day period (30) or earlier 10-day period, howeverif applicable), the then such Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim andAction for the account and risk of the Indemnifying Party, if and the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will shall not be required to pay the fees and disbursements of more than one counsel law firm (and one local law firm) for all Indemnified Parties in any jurisdiction in any single Third Action unless an Indemnified Party Claimdetermines in good faith after conferring with its outside counsel that such joint representation would be inappropriate. In any Third Party Claim or Misclassification Claim Action with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter litigation and to retain its own counsel at such Party’s party's own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any matter action, the defense of which they are maintaining it is maintaining, and to cooperate in good faith with each the other with respect to the defense of any such matter.
(c) Subject action. Anything in this Section 8.4 to the provisions contained in Schedule 10.1(a)(iv)contrary notwithstanding, no Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder, including, but not limited to, with respect to Indemnified Misclassification Claims, without the prior written consent of the Indemnifying Party which shall not be unreasonably withheld, conditioned or delayed entitled to assume the defense of any third-party claim (it being acknowledged that any settlement which is generally consistent with amounts and shall pay the fees and expenses of prior settlements of Misclassification Claims counsel incurred by the Company or any Company Subsidiary shall be deemed reasonable).
(d) If an Indemnified Party claims a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification Claim, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Indemnified Party has given in defending such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such third-party claim (by mutual agreement, litigation or otherwiseas incurred) and, within five (5) Business Days of the final determination of the merits and amount of such claim, if (i) if the third-party claim is brought by any Governmental Authority or seeks an injunction or other equitable relief or any other relief other than money damages against the Indemnified Party that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages; (ii) the third party claim relates to the Indemnified Party's relationship with Wendy's or any landlord, supplier or employee, (iii) the third party claim relates to any criminal proceeding, action, indictment, allegation or investigation or (iv) the amount DB03/0502991.0020/10136186.1 WP01 claimed by the third party exceeds or may exceed the Limitation Amount or the Indemnifying Party is an Equity Holder(s), fails to acknowledge its obligation to indemnify the Indemnified Party for any Losses resulting from such Equity Holder(s) shallthird party claim, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in immediately available funds an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h)limitations set forth herein.
Appears in 1 contract
Sources: Asset Purchase Agreement (NPC Restaurant Holdings, LLC)
Indemnification Procedure. (a) The If there occurs an event which any Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt by an Indemnified Party of notice from a third party of a threatened or filed complaint or asserts is an indemnifiable event pursuant to this Section 9, the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification hereunder, such Buyer Indemnified Party shall provide prompt written notice to Buyer or promptly notify in writing the Equity Holders, whichever is Sellers of the appropriate indemnifying Party hereunder (the “Indemnifying Party”)occurrence of such event; provided, however, that the failure of the Buyer Indemnified Party to so notify give the Indemnifying Party Sellers timely notice as provided herein shall not relieve the Indemnifying Party from liability Sellers of Sellers’ obligations under this Agreement with respect to such claim only ifSection 9, and only except to the extent that, such failure to notify Sellers are actually and materially prejudiced thereby. If the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claim. The Indemnifying Buyer Indemnified Party shall have give the right, upon Sellers prompt written notice delivered to the Indemnified Party within thirty (30) days thereafter, to assume the defense of such Third Party Claim, including Claim or the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements commencement of such counsel. If action, suit or proceeding, and upon written request by the Indemnifying Party declines Buyer, the Sellers shall, at Sellers’ election at any time, promptly defend or fails to assume the defense and continue the defense of such Third Party Claim within such thirty (30) day periodat the Sellers’ expense; provided, however, that the Sellers shall not consent to the entry of any judgment or enter into any settlement or compromise without the written consent of the Buyer Indemnified Party may employ counsel (such consent not to represent or defend it in any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurredbe unreasonably withheld); provided, however, that the Indemnifying Party will not no such consent shall be required to pay as long as it is solely a monetary settlement (that will be paid entirely by the fees and disbursements Sellers) that provides a full release of more than one counsel for all the Buyer Indemnified Parties in any jurisdiction in any single Third Party Claim. In any Third Party Claim or Misclassification Claim with respect to which indemnification is being sought hereundersuch matter and does not contain an admission of liability on the part of the Buyer Indemnified Party and will not have an ongoing adverse affect on the business or operations of the Buyer Indemnified Party. If the Sellers elect not to defend, fail to undertake or continue such defense, the Indemnified Party or Buyer shall have the Indemnifying Partyright (but not the obligation) to make and continue such defense as it considers appropriate, whichever is and the expenses and costs thereof (including but not assuming limited to reasonable attorneys’ fees, out-of-pocket costs and the defense costs of such actionan appeal and bond thereof, together with the amounts of any judgment rendered against the Buyer) shall be paid by the Sellers. Notwithstanding the election by the Sellers to assume any defense, the Buyer shall have the right to participate in such matter and to retain defense at its own counsel at such Party’s own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of any matter the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.
(c) Subject to the provisions contained in Schedule 10.1(a)(iv), no Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder, including, but not limited to, with respect to Indemnified Misclassification Claims, without the prior written consent of the Indemnifying Party which shall not be unreasonably withheld, conditioned or delayed (it being acknowledged that any settlement which is generally consistent with amounts of prior settlements of Misclassification Claims by the Company or any Company Subsidiary shall be deemed reasonable).
(d) If an Indemnified Party claims a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification Claim, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation or otherwise) and, within five (5) Business Days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in immediately available funds an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h).
Appears in 1 contract
Sources: Asset Purchase Agreement (Capstone Dental Pubco, Inc.)
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after following receipt by an Indemnified Party of notice from by a third party (including any Governmental Entity) of a threatened or filed any complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third "Third-Party Claim”") with respect to which such Indemnified Party may be entitled to indemnification hereunderreceive payment from the other Party for any Purchaser Losses or any Seller Losses (as the case may be), such Indemnified Party shall provide prompt written notice to Buyer notify Purchaser or Parent, as the Equity Holders, whichever is the appropriate indemnifying Party hereunder case may be (the “"Indemnifying Party”"), of the Indemnified Party's receipt of such notice; provided, however, that the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from liability under this Agreement of its obligations hereunder with respect to such claim only if, and only a Third-Party Claim except to the extent that, such failure to notify that the Indemnifying Party results in (i) demonstrates that the forfeiture defense of such Third-Party Claim has been actually prejudiced by the Indemnifying Party of material rights and defenses otherwise available Indemnified Party's failure to the Indemnifying Party with respect to give such claim or (ii) material prejudice to the Indemnifying Party with respect to such claimnotice. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty (30) 20 days thereafter, thereafter to assume the defense of such Third Party Claimaudit, investigation, action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If In the event, however, that the Indemnifying Party declines or fails to assume the defense of such Third Third-Party Claim on the terms provided above or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such thirty (30) 20-day period, howeverthen any Purchaser Losses or any Seller Losses (as the case may be), the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will pay shall include the reasonable fees and disbursements of such counsel for the Indemnified Party as incurred; provided, however, that any Purchaser Losses or any Seller Losses (as the Indemnifying Party will case may be) shall not be required to pay include the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in with respect to any single Third Third-Party Claim. In any Third Third-Party Claim or Misclassification Claim with respect to for which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter and to retain its own counsel at such Party’s 's own expense. The Indemnifying Party or the Indemnified Party, Party (as the case may be, ) shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, Party (as the case may be, ) reasonably apprised of the status of any matter the defense of which they are any Third-Party Claim that it is maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.
(cb) Subject to the provisions contained in Schedule 10.1(a)(iv), no No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunderhereunder without the prior written consent of the Indemnifying Party, includingunless (i) the Indemnifying Party fails to assume and maintain the defense of such claim pursuant to Section 7.3(a) or (ii) such settlement, but not limited tocompromise or consent includes an unconditional release of the Indemnifying Party and its officers, with respect to Indemnified Misclassification Claimsdirectors, employees and Affiliates from all liability arising out of such claim. An Indemnifying Party may not, without the prior written consent of the Indemnifying Indemnified Party, settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder unless (x) such settlement, compromise or consent includes an unconditional release of the Indemnified Party which shall and its officers, directors, employees and Affiliates from all liability arising out of such claim, (y) does not be unreasonably withheldcontain any admission or statement suggesting any wrongdoing or liability on behalf of the Indemnified Party and (z) does not contain any equitable order, conditioned judgment or delayed (it being acknowledged term that in any settlement which is generally consistent manner affects, restrains or interferes with amounts the business of prior settlements of Misclassification Claims by the Company Indemnified Party or any Company Subsidiary shall be deemed reasonable)of the Indemnified Party's Affiliates.
(dc) If In the event an Indemnified Party claims a right to payment pursuant hereto (other than pursuant to this Agreement not involving a Third Party Claim or a Misclassification ClaimSection 7.3(a)), such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after The failure by any Indemnified Party so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability that it may have to such Indemnified Party with respect to any claim made pursuant to this Section 7.3(c), it being understood that notices for claims in respect of a breach of a representation or warranty must be delivered prior to the expiration of the survival period for such representation or warranty under Section 7.4. In the event the Indemnifying Party does not notify the Indemnified Party within 30 days following its receipt of such notice that the Indemnifying Party disputes its liability to the Indemnified Party under this Article or the amount thereof, the claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party under this Article VII, and the Indemnifying Party shall pay the amount of such liability to the Indemnified Party on demand or, in the case of any notice in which the amount of the claim (or any portion of the claim) is estimated, on such later date when the amount of such claim (or such portion of such claim) becomes finally determined. In the event the Indemnifying Party has given timely disputed its liability with respect to such noticeclaim as provided above, as promptly as possible, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation litigation, arbitration or otherwise) and, within five (5) Business Days of following the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in the Indemnified Party immediately available funds in an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h).
Appears in 1 contract
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations If any Party hereto discovers or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt by an Indemnified Party of notice from a third party otherwise becomes aware of a threatened or filed complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) claim with respect to which such Indemnified Party a claim for indemnification may be entitled made pursuant to indemnification hereunder▇▇.▇▇. 4.1.1 or 4.1.2 of this Agreement (including any third party claim) (the "Indemnified Party"), such Indemnified Party shall provide prompt give written notice to Buyer or the Equity Holders, whichever is the appropriate indemnifying other Party hereunder (the “"Indemnifying Party”"), specifying such claim; provided, however, that the failure of any Indemnified Party to so notify give notice as provided herein shall not relieve the Indemnifying Party of any obligations hereunder to the extent the Indemnifying Party is not Materially prejudiced thereby. Further, promptly after receipt by an Indemnified Party hereunder of written notice of the commencement of any action or proceeding with respect to which a claim for indemnification may be made pursuant to this ss. 4, such Indemnified Party shall, if a claim in respect thereof is to be made against any Indemnifying Party, give written notice to the latter of the commencement of such action; provided, however, that the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of any obligations hereunder to the extent the Indemnifying Party is not Materially prejudiced thereby. In case any such action is brought against an Indemnified Party, the Indemnifying Party shall relieve assume the defense thereof to the extent that it may wish, with counsel reasonably satisfactory to such Indemnified Party, and after such notice from the Indemnifying Party from liability under this Agreement with respect to such claim only ifIndemnified Party of its assumption of the defense thereof, and only to the extent that, such failure to notify the Indemnifying Party results shall not be liable to such Indemnified Party for any legal or other expenses subsequently incurred by the latter in (i) connection with the forfeiture by defense thereof unless the Indemnifying Party has failed to assume the defense of material rights such claim and defenses otherwise available to employ counsel reasonably satisfactory to such Indemnified Party. An Indemnifying Party who does not assume the defense of a claim shall not be liable for the fees and expenses of more than one counsel in any single jurisdiction for all parties indemnified by such Indemnifying Party with respect to such claim or (ii) material prejudice with respect to claims separate but similar or related in the same jurisdiction arising out of the same general allegations. Notwithstanding any of the foregoing to the contrary, the Indemnified Party will be entitled to select its own counsel and assume the defense of any action brought against it if the Indemnifying Party fails to select counsel reasonably satisfactory to the Indemnified Party, the expenses of such defense to be paid by the Indemnifying Party. No Indemnifying Party shall consent to entry of any judgment or enter into any settlement with respect to a claim without the consent of the Indemnified Party, which consent shall not be unreasonably withheld, or unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability with respect to such claim. The Indemnifying No Indemnified Party shall have the right, upon written notice delivered consent to the Indemnified Party within thirty (30) days thereafter, to assume the defense entry of such Third Party Claim, including the employment any judgment or enter into any settlement of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If the Indemnifying Party declines or fails to assume the defense of such Third Party Claim within such thirty (30) day period, however, the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claim. In any Third Party Claim or Misclassification Claim with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter and to retain its own counsel at such Party’s own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of any matter the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.
(c) Subject to the provisions contained in Schedule 10.1(a)(iv), no Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder, including, but not limited to, with respect to Indemnified Misclassification Claimshas been assumed by an Indemnifying Party, without the prior written consent of the such Indemnifying Party Party, which consent shall not be unreasonably withheld, conditioned withheld or delayed (it being acknowledged that any settlement which is generally consistent with amounts delayed. All costs and expenses to be paid by an Indemnifying Party on behalf of prior settlements of Misclassification Claims by the Company or any Company Subsidiary shall be deemed reasonable).
(d) If an Indemnified Party claims shall be paid on a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification Claim, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the current basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation or otherwise) and, within five (5) Business Days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in immediately available funds an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h)incurred.
Appears in 1 contract
Sources: Asset Purchase Agreement (U S Industrial Services Inc)
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt by an Indemnified Party of notice from by a third party of a threatened or filed any complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third with or against an Indemnified Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification is being sought hereunder, such Indemnified Party shall provide prompt written notice to Buyer or the Equity Holders, whichever is the appropriate indemnifying Party hereunder (the “Indemnifying Party”); provided, however, that the failure to so will notify the Indemnifying Party shall relieve Representative of such complaint or of the Indemnifying Party from liability under this Agreement with respect to commencement of such claim only ifaction or proceeding. If the Representative is so requested by such Indemnified Party, and only to the extent that, such failure to notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty (30) days thereafter, to Representative will assume the defense of such Third Party Claimaction or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges Party. In the event, however, that King & Spalding LLP shall be satisfactory to the such Indemnified Party determines to assume the defense or if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If the Indemnifying Party declines or Representative fails to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory to such Third Party Claim within Indemnified Party, in either case in a timely manner, then such thirty (30) day period, however, the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if action or proceeding and the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that will be paid out of the Indemnifying Party will not be required to pay Escrow Funds in accordance with the fees and disbursements terms of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claimthe Escrow Agreement. In any Third Party Claim action or Misclassification Claim proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party Parties or the Indemnifying PartyRepresentative, whichever is are not assuming the defense of such action, shall as the case may be, will have the right to participate in such matter litigation and to retain its own counsel at such Party’s own whose expense. The Indemnifying Party or , in the case of the Indemnified Party, shall be paid by such Indemnified Party and, in the case of the Representative, shall be paid out of the Escrow Funds, so long as any amounts remain thereof, and otherwise in accordance with Section 12.5 below. The Indemnified Parties and the Representative, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, each other reasonably apprised of the status of the defense of any matter claim the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such mattermaintaining.
(cb) Subject to the provisions contained in Schedule 10.1(a)(iv), no Indemnified Party The Representative may not settle or compromise any claim compromise, or consent to the entry of any judgment regarding any claim with respect to which indemnification is being sought hereunderhereunder unless such settlement, including, but not limited to, with respect to Indemnified Misclassification Claims, without the prior written compromise or consent includes an unconditional release of the Indemnifying Party which shall not be unreasonably withheld, conditioned or delayed (it being acknowledged that any settlement which is generally consistent with amounts of prior settlements of Misclassification Claims by the Company or any Company Subsidiary shall be deemed reasonable).
(d) If an Indemnified Party claims a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification Claim, such Indemnified Party shall send written notice from all liability arising out of such claim to and such settlement, compromise or consent does not contain any equitable order, judgment or term which in any material manner affects, restrains or interferes with the appropriate Indemnifying Party. Such notice shall specify in reasonable detail business of the basis for such claim. As promptly as possible after Company, any of the Company Subsidiaries, any of the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount Parties or any of such claim (by mutual agreement, litigation or otherwise) and, within five (5) Business Days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in immediately available funds an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h)affiliates.
Appears in 1 contract
Indemnification Procedure. If either QLT or Kinetek any of their respective Affiliates (a) The Buyer shall have in this section, an "INDEMNIFIED PARTY"), receives any written claim which it believes is the right to control and defendsubject of, with counsel or otherwise believes that circumstances exist giving rise to, an indemnity under this Agreement by either Kinetek or QLT, as the case may be (in this section, an "INDEMNIFYING PARTY"), the Indemnified Party shall, as soon as reasonably practicable after forming such belief, give notice of its choosing reasonably acceptable the claim or circumstances to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt by an Indemnified Party of notice from a third party of a threatened or filed complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification hereunder, such Indemnified Party shall provide prompt written notice to Buyer or the Equity Holders, whichever is the appropriate indemnifying Party hereunder (the “Indemnifying Party”); , including full particulars of the claim or circumstances to the extent known to the Indemnified Party, provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available give timely notice to the Indemnifying Party with as contemplated hereby shall not release the indemnifying Party from any liability to indemnify any persons indemnified under this Article 15, and, subject to Article 11 in respect to such claim or of infringement claims and infringement actions, the following shall apply:
(iia) material prejudice to the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the right, upon written by prompt notice delivered to the Indemnified Party within thirty (30) days thereafterParty, to assume the defense of such Third Party Claim, including the employment of claim with counsel reasonably satisfactory to the Indemnified Party (Party, and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to at the Indemnified Party if Buyer is the Indemnified Party) and the payment cost of the fees and disbursements of such counsel. If Indemnifying Party;
(b) if the Indemnifying Party declines or fails to does not so assume the defense of such Third Party Claim within such thirty (30) day period, howeverthe claim, the Indemnified Party may employ assume the defense with counsel to represent or defend it in any such Third Party Claim and, of its choice at the sole expense of the Indemnifying Party;
(c) if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which assumes the Indemnified Party is entitled to receive payment from defense of the Indemnifying Party for the Loss in question, the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claim. In any Third Party Claim or Misclassification Claim with respect to which indemnification is being sought hereunderclaim, the Indemnified Party or may participate therein through counsel of its choice, but the Indemnifying cost of such counsel shall be borne solely by the Indemnified Party, whichever is ;
(d) any party not assuming the defense of such actiona claim shall render all reasonable assistance to the party assuming the defense, and all out-of-pocket costs of this assistance shall have the right to participate in such matter and to retain its own counsel at such Party’s own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep be borne solely by the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of any matter the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.; and
(ce) Subject to no claim shall be settled other than by the provisions contained in Schedule 10.1(a)(iv)party defending the claim, no Indemnified Party may settle or compromise any claim or consent to and then only with the entry of any judgment with respect to which indemnification is being sought hereunder, including, but not limited to, with respect to Indemnified Misclassification Claims, without the prior written consent of the Indemnifying Party other party, which shall not be unreasonably withheld, conditioned or delayed (it being acknowledged provided, however, that any settlement which is generally consistent with amounts of prior settlements of Misclassification Claims by the Company or any Company Subsidiary shall be deemed reasonable).
(d) If an Indemnified Party claims a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification Claim, such Indemnified Party shall send written notice have no obligation to consent to any settlement of such any claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after which imposes on the Indemnified Party has given such notice, such Indemnified Party any liability or obligation which cannot be assumed and the appropriate Indemnifying Party shall establish the merits and amount of such claim (performed in full by mutual agreement, litigation or otherwise) and, within five (5) Business Days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in immediately available funds an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h)Party.
Appears in 1 contract
Sources: Research and Early Development Agreement (QLT Inc/Bc)
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(bi) Promptly after receipt by an a Buyer Indemnified Party of notice from by a third party of a threatened or filed any complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification hereunderis being sought under this Agreement, such Buyer Indemnified Party shall provide prompt written notice to Buyer notify the Seller Indemnitors Representative of such complaint or of the Equity Holders, whichever is the appropriate indemnifying Party hereunder (the “Indemnifying Party”)commencement of such action or proceeding; provided, however, that the failure to so notify such party shall not relieve Sellers from liability for such claims arising other than under this Agreement and such failure to so notify the Indemnifying Party such party shall relieve the Indemnifying Party Sellers from liability which Sellers may have under this Agreement with respect to such claim if, but only if, and only to the extent that, such failure to notify the Indemnifying Party Sellers results in (i) the forfeiture by the Indemnifying Party Sellers of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party Sellers with respect to such claim. The Indemnifying Party Sellers shall have the right, upon written notice delivered to the Buyer Indemnified Party within thirty (30) days thereafterfrom the Seller Indemnitors Representative, to assume the defense of such Third Party Claimaction or proceeding, including the employment of counsel reasonably satisfactory to the Buyer Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counselcounsel as incurred. If Sellers do not elect to assume control of the Indemnifying Party declines defense of any such claims, Sellers shall be bound by the results otherwise obtained with respect to such claim. In the event, however, that Sellers decline or fails fail to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory to such Third Party Claim within Buyer Indemnified Party, in either case in a timely manner, then such thirty (30) day period, however, the Buyer Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will action or proceeding and Sellers shall pay the reasonable fees and disbursements of such counsel as incurredupon receipt of an invoice; provided, however, that the Indemnifying Party will Sellers shall not be required to pay the fees and disbursements of more than one counsel for all Buyer Indemnified Parties in any jurisdiction in any single Third Party Claimaction or proceeding. In any Third Party Claim action or Misclassification Claim proceeding with respect to which indemnification is being sought hereunderunder this Agreement, the Buyer Indemnified Party Parties or the Indemnifying PartySellers, whichever is not assuming the defense of such action, shall have the right to participate in such matter litigation and to retain its own counsel at such Party’s party's own expense. The Indemnifying Party Buyer Indemnified Parties or the Indemnified PartySellers, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party Sellers or the Buyer Indemnified PartyParties, as the case may be, reasonably apprised of the status of the defense of any matter claim the defense of which they are maintaining maintaining, and to cooperate in good faith with each other with respect to the defense of any such matteraction.
(cii) Subject to the provisions contained in Schedule 10.1(a)(iv), no No Buyer Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunderfrom Sellers under this Agreement without the prior written consent of each of the Sellers against whom indemnification is being sought, includingunless such settlement, but compromise or consent includes an unconditional release of such Sellers from all liability arising out of such claim and does not limited tocontain any equitable order, judgment or term which affects, restrains or interferes with respect to Indemnified Misclassification Claimsthe business of such Sellers. Sellers shall not, without the prior written consent of Buyer, settle or compromise any claim or consent to the Indemnifying entry of any judgment with respect to which indemnification is being sought under this Agreement unless such settlement, compromise or consent includes an unconditional release of the Buyer Indemnified Party from all liability arising out of such claim and does not contain any equitable order, judgment or term which shall not be unreasonably withheldin any manner affects, conditioned restrains or delayed (it being acknowledged that interferes with the business of Buyer, any settlement which is generally consistent with amounts of prior settlements of Misclassification Claims by the Company Buyer Indemnified Parties or any Company Subsidiary shall be deemed reasonable)of their respective affiliates.
(diii) If an In the event that a Buyer Indemnified Party claims does claim a right to payment pursuant to Section 7.2(a) of this Agreement not involving a Third Party Claim or a Misclassification ClaimAgreement, such Buyer Indemnified Party shall send written notice of such claim to each of the appropriate Indemnifying PartyManagement Sellers. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Buyer Indemnified Party has given such notice, such Buyer Indemnified Party and the appropriate Indemnifying Party Seller Indemnitors Representative, shall establish the merits and amount of such claim (by mutual agreement, litigation litigation, arbitration, mediation or otherwise) and, within five (5) Business Days business days of the final determination of the merits and amount of such claim, (i) if Sellers shall deliver to the Indemnifying Buyer Indemnified Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf amount of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer cash in immediately available funds in either case in an amount equal sufficient to satisfy and discharge in full such claim as determined hereunderunder this Agreement; provided, and (ii) however, that if Sellers still hold any of the Indemnifying Party is Harbinger Shares, Sellers shall satisfy such claim to the Buyer, maximum extent possible by delivering to the Buyer shall pay to Indemnified Party Harbinger Shares (Avalued for these purposes using the Average Closing Price (as defined in Section 1.2)) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder paying any balance in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h)cash.
Appears in 1 contract
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after following receipt by an Indemnified Party of notice from by a third third-party (including any Governmental Body) of a threatened any complaint, dispute or filed complaint claim or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification hereunderpursuant hereto (a “Third-Party Claim”), or upon realization of a Loss by an Indemnified Party for which the Indemnified Party is entitled to indemnification under this Article X, such Indemnified Party shall provide prompt written notice thereof to Buyer or the Equity Holders, whichever is the appropriate indemnifying Party hereunder party obligated to indemnify under this Agreement (the “Indemnifying Party”); , provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement hereunder with respect to such claim Third-Party Claim only if, and only to the extent that, such failure to so notify the Indemnifying Party results in (i) materially prejudices the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Third-Party with respect to such claimClaim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty twenty (3020) days thereafterthereafter assuming full responsibility for any Purchaser Losses or Stockholder Losses (as the case may be) resulting from such Third-Party Claim, to assume the defense of such Third Third-Party Claim, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If In the event, however, that the Indemnifying Party declines or fails to assume the defense of such Third Third-Party Claim on the terms provided above or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such thirty twenty (30) day 20)-day period, however, or thereafter defaults in continuing to defend the Indemnified Party Party, then any Purchaser Losses or any Stockholder Losses (as the case may employ counsel to represent or defend it in any such Third Party Claim andbe), if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will pay shall include the reasonable fees and disbursements of such counsel for the Indemnified Party as incurred; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claim. In any Third Third-Party Claim or Misclassification Claim with respect to for which indemnification is being sought hereunder, hereunder the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such actionThird-Party Claim, shall have the right to participate in such matter and to retain its own counsel at such Party’s own expense. The Indemnifying Party or the Indemnified Party, Party (as the case may be, ) shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, Party (as the case may be, ) reasonably apprised of the status of the defense of any matter the defense of which they are it is maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.
(cb) Subject to the provisions contained in Schedule 10.1(a)(iv), no No Indemnified Party may settle or compromise any claim Third-Party Claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder, including, but not limited to, with respect to Indemnified Misclassification Claims, hereunder without the prior written consent of the Indemnifying Party (which shall may not be unreasonably withheldwithheld or delayed), conditioned unless (i) the Indemnifying Party fails to assume and maintain diligently the defense of such Third-Party Claim pursuant to Section 10.3(a) or delayed fails to [****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. reimburse the Indemnified Party within thirty (it being acknowledged that any settlement which is generally consistent with amounts of prior settlements of Misclassification Claims 30) days for expenses incurred by the Company Indemnified Party in defending itself against any Third-Party Claim in the circumstance where the Indemnifying Party fails to assume the defense of the Indemnified Party or having assumed the defense, thereafter defaults in pursuing such defense, or (ii) such settlement, compromise or consent includes an unconditional release of the Indemnifying Party and its officers, directors, employees and Affiliates from all liability arising out of, or related to, such Third-Party Claim without further monetary liability to the Indemnifying Party. An Indemnifying Party may not, without the prior written consent of the Indemnified Party, settle or compromise any Third-Party Claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder unless such settlement, compromise or consent (i) includes an unconditional release of the Indemnified Party and its officers, directors, employees and Affiliates from all liability arising out of, or related to, such Third-Party Claim, (ii) does not contain any admission or statement suggesting any wrongdoing or liability on behalf of the Indemnified Party, and (iii) does not contain any equitable order, judgment or term that in any manner affects, restrains or interferes with the business of the Indemnified Party or any Company Subsidiary shall be deemed reasonable)of the Indemnified Party’s Affiliates.
(dc) If In the event an Indemnified Party claims a right to payment pursuant hereto with respect to this Agreement any matter not involving a Third Third-Party Claim or (a Misclassification “Direct Claim”), such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying PartyParty (a “Notice of Claim”). Such notice Notice of Claim shall specify in reasonable detail the basis for such claimDirect Claim. As promptly as possible after The failure by any Indemnified Party so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability that it may have to such Indemnified Party with respect to any Direct Claim made pursuant to this Section 10.3(c), it being understood that Notices of Claim in respect of a breach of a representation or warranty must be delivered prior to the expiration of the survival period for such representation or warranty under Section 10.4. In the event the Indemnifying Party does not notify the Indemnified Party within thirty (30) days following its receipt of such Notice of Claim that the Indemnifying Party disputes its liability to the Indemnified Party under this Article X or the amount thereof, the Direct Claim specified by the Indemnified Party in such Notice of Claim shall be conclusively deemed a liability of the Indemnifying Party under this Article X, and the Indemnifying Party shall pay the amount of such liability to the Indemnified Party on demand or, in the case of any notice in which the amount of the Direct Claim (or any portion of the Direct Claim) is estimated, on such later date when the amount of such Direct Claim (or such portion of such Direct Claim) becomes finally determined. All amounts due to a Purchaser Indemnified Party as so finally determined shall be paid first from the Escrow Account until all monies in such account are exhausted and then jointly and severally by the Stockholders, in each case by wire transfer within five (5) Business Days following such final determination. In the event the Indemnifying Party has given timely disputed its liability with respect to such noticeDirect Claim as provided above, as promptly as reasonably practicable, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim Direct Claim (by mutual agreement, litigation or otherwise) and, within five (5) Business Days of following the final determination of the merits and amount of such claimDirect Claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in immediately available funds an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim Direct Claim as determined hereunder first from the Escrow Account until all monies in immediately available funds such account are exhausted and (B) then jointly and severally by the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim Stockholders, in each case by wire transfer. If a dispute exists as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders amount of any Direct Claim, the substantially prevailing party shall be entitled to all legal and other fees paid in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h)asserting or defending such Direct Claim, as the case may be.
Appears in 1 contract
Sources: Stock Purchase Agreement (Biomarin Pharmaceutical Inc)
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after following receipt by an indemnified party (an “Indemnified Party Party”) of notice from by a third party of a threatened any complaint, dispute or filed complaint claim or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification hereunderreceive payment from the other party for any RCCC Losses, such Indemnified Party shall provide prompt written notice thereof to Buyer or the Equity Holders, whichever is the appropriate indemnifying Party hereunder Indemnifying Shareholders (the “Indemnifying Party”); provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement hereunder with respect to such claim only if, and only to the extent that, such failure to so notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty ten (3010) days thereafterthereafter assuming full responsibility for any RCCC Losses resulting from such audit, investigation, action or proceeding, to assume the defense of such Third Party Claimaudit, investigation, action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If In the event, however, that the Indemnifying Party declines or fails to assume the defense of such Third Party Claim the audit, investigation, action or proceeding on the terms provided above or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such thirty (30) 10-day period, howeverthen any RCCC Losses, the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will pay shall include the reasonable fees and disbursements of such counsel for the Indemnified Party as incurred; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claim. In any Third Party Claim audit, investigation, action or Misclassification Claim with respect to proceeding for which indemnification is being sought hereunder, hereunder the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter and to retain its own counsel at such Party’s own expense. The Indemnifying Party or the Indemnified Party, Party (as the case may be, ) shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, Party (as the case may be, ) reasonably apprised of the status of the defense of any matter the defense of which they are it is maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.
(cb) Subject to the provisions contained in Schedule 10.1(a)(iv), no No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder, including, but not limited to, with respect to Indemnified Misclassification Claims, hereunder without the prior written consent of the Indemnifying Party (which shall may not be unreasonably withheldwithheld or delayed), conditioned unless such settlement, compromise or delayed consent includes an unconditional release of the Indemnifying Party from all liability arising out of, or related to, such claim. An Indemnifying Party may not, without the prior written consent of the Indemnified Party, settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder unless such settlement, compromise or consent (it being acknowledged x) includes an unconditional release of the Indemnified Party from all liability arising out of, or related to, such claim, (y) does not contain any admission or statement suggesting any wrongdoing or liability on behalf of the Indemnified Party and (z) does not contain any order, judgment or term that in any settlement which is generally consistent manner affects, restrains or interferes with amounts the business of prior settlements of Misclassification Claims by the Company or any Company Subsidiary shall be deemed reasonable)Indemnified Party.
(dc) If In the event an Indemnified Party claims a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification Claimhereto, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying PartyParty (a “Notice of Claim”). Such notice Notice of Claim shall specify in reasonable detail the basis for such claim. As promptly as possible after The failure by any Indemnified Party to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability that it may have to such Indemnified Party with respect to any claim made pursuant to this Section 8.2(c). In the event the Indemnifying Party does not notify the Indemnified Party within fifteen (15) days following its receipt of such notice that the Indemnifying Party disputes its liability to the Indemnified Party under this Article VIII or the amount thereof, the claim specified by the Indemnified Party in such Notice of Claim shall be conclusively deemed a liability of the Indemnifying Party and the Indemnifying Party shall pay the amount of such liability to the Indemnified Party on demand or, in the case of any notice in which the amount of the claim (or any portion of the claim) is estimated, on such later date when the amount of such claim (or such portion of such claim) becomes finally determined. In the event the Indemnifying Party has given timely disputed its liability with respect to such noticeclaim as provided above, as promptly as possible, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation litigation, arbitration or otherwise) and, within five (5) Business Days of business days following the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in the Indemnified Party immediately available funds in an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h).
Appears in 1 contract
Indemnification Procedure. If any action or proceeding (including any governmental investigation) shall be brought or asserted against Hall or the Company or OYO USA in respect of which indemnification may be sought by such person (as applicable, the “Indemnified Party”) pursuant to paragraph (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt by above from an Indemnified Party of notice from a third indemnifying party of a threatened or filed complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification hereunder, such Indemnified Party shall provide prompt written notice to Buyer or the Equity Holders, whichever is the appropriate indemnifying Party hereunder (the “Indemnifying Party”); provided, howeverthe Indemnified Party shall give prompt notice thereof (the “Indemnification Notice”) to the Indemnifying Party, that the failure to so notify and the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty (30) days thereafter, to promptly assume the defense of such Third Party Claimthereof, including the employment of counsel reasonably satisfactory to the Indemnified Party, and shall assume the payment of all expenses. The failure of the Indemnified Party (to deliver the Indemnification Notice in accordance with the foregoing sentence shall not relieve the Indemnifying Party of its indemnity agreement herein unless and Buyer hereby acknowledges that King & Spalding LLP to the extent such failure results in the forfeiture by the Indemnifying Party of substantial rights and defenses with respect thereto. The Indemnified Party shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be satisfactory at the expense of the Indemnified Party unless (i) the Indemnifying Party has agreed to pay such fees and expenses, (ii) the use by the Indemnified Party of counsel selected by the Indemnifying Party would present such counsel with a conflict of interest or (iii) the named parties to any such action or proceeding (including any impleaded parties) include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party shall have been advised by counsel that there may be one or more legal defenses available to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If which are different from or additional to those available to the Indemnifying Party declines or fails (in which case, if the Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counsel at the expense of the Indemnifying Party, then the Indemnifying Party shall not have the right to assume the defense of such Third Party Claim within such thirty (30) day period, however, the action or proceeding on behalf of Indemnified Party may employ counsel to represent or defend Party); it in any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurred; providedbeing understood, however, that the Indemnifying Party will not shall not, in connection with any such action or proceeding of separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be required to pay liable for the fees and disbursements expenses of more than one counsel separate firm of attorneys (together with appropriate local counsel) at any time for all Indemnified Parties in any jurisdiction in any single Third Party Claim. In any Third Party Claim or Misclassification Claim with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming which firm shall be designated in writing by the defense of such action, shall have the right to participate in such matter and to retain its own counsel at such Indemnified Party’s own expense. The Indemnifying Party shall not be liable for any settlement of any action or proceeding effected without the Indemnified Indemnifying Party’s written consent, as but if settled with its written consent, or if there be a final judgment for the case may beplaintiff in any such action or proceeding, shall at all times use reasonable efforts to keep then the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of any matter the defense of which they are maintaining agrees to indemnify and to cooperate in good faith with each other with respect to the defense of any such matter.
(c) Subject to the provisions contained in Schedule 10.1(a)(iv), no Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder, including, but not limited to, with respect to Indemnified Misclassification Claims, without the prior written consent of the Indemnifying Party which shall not be unreasonably withheld, conditioned or delayed (it being acknowledged that any settlement which is generally consistent with amounts of prior settlements of Misclassification Claims by the Company or any Company Subsidiary shall be deemed reasonable).
(d) If an Indemnified Party claims a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification Claim, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after hold harmless the Indemnified Party has given such notice, such Indemnified Party from and against any loss or liability (to the appropriate Indemnifying Party shall establish the merits and amount extent stated above) by reason of such claim (by mutual agreement, litigation settlement or otherwise) and, within five (5) Business Days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in immediately available funds an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h)judgment.
Appears in 1 contract
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt by an a Charter LLC Indemnified Party or a Magellan Indemnified Party (each an "Indemnified Party") of notice from by a third party of a threatened or filed any complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification is being sought hereunder, such Indemnified Party shall provide prompt written notice to Buyer notify Charter LLC, if the Indemnified Party is a Magellan Indemnified Party, or Magellan, if the Equity Holders, whichever Indemnified Party is the appropriate indemnifying a Charter LLC Indemnified Party hereunder (the “"Indemnifying Party”"), of such complaint or of the commencement of such action or proceeding; provided, however, that the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from liability for such claim arising otherwise than under this Agreement and such failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability which the Indemnifying Party may have under this Agreement with respect to such claim if, but only if, and only to the extent that, such failure to notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty (30) days thereafterParty, to assume the defense of such Third Party Claimaction or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the reasonable fees and disbursements of such counsel. If In the event, however, that the Indemnifying Party declines or fails to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory to the Indemnified Party, in either case in a timely manner, then such Third Party Claim within such thirty (30) day period, however, the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if action or proceeding and the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will shall not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claimaction or proceeding. In any Third Party Claim action or Misclassification Claim proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter litigation and to retain its own counsel at such Party’s party's own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any matter action, the defense of which they are it is maintaining and to cooperate in good faith with each other the Indemnifying Party or the Indemnified Party, as the case may be, with respect to the defense of any such matteraction.
(cb) Subject to the provisions contained in Schedule 10.1(a)(iv), no No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder, including, but not limited to, with respect to Indemnified Misclassification Claims, hereunder without the prior written consent of the Indemnifying Party which shall not be unreasonably withheldParty, conditioned unless such settlement, compromise or delayed (it being acknowledged that any settlement which is generally consistent with amounts consent includes an unconditional release of prior settlements of Misclassification Claims by the Company or any Company Subsidiary shall be deemed reasonable).
(d) If an Indemnified Party claims a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification Claim, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation or otherwise) and, within five (5) Business Days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf from all liability arising out of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in immediately available funds an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h).such
Appears in 1 contract
Sources: Contribution Agreement (Magellan Health Services Inc)
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt by If an Indemnified Party is aware that a claim, demand or other circumstance exists that has given or may reasonably be expected to give rise to a right of indemnification under this Agreement (whether or not the amount of the claim is then quantifiable), the Indemnified Party must promptly give written notice from a third party of a threatened or filed complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim thereof to Servicer (a “Third Claim Notice”), and the Indemnified Party Claim”) will thereafter keep Servicer reasonably informed with respect to which such Indemnified Party may be entitled to indemnification hereunderthereto, such Indemnified Party shall provide prompt written notice to Buyer or the Equity Holders, whichever is the appropriate indemnifying Party hereunder (the “Indemnifying Party”); provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty to give Servicer promptly a Claim Notice as provided will not relieve Servicer of its obligations hereunder except to the extent, if any, that Servicer’s rights have been prejudiced or Servicer’s liability has been increased thereby. In case any such action, suit, or proceeding is brought against an Indemnified Party, Servicer will be entitled to participate in (30) days thereafterand in its discretion, to assume assume) the defense of such Third Party Claim, including the employment of thereof with counsel reasonably satisfactory to the Indemnified Party; provided however, that the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall will be satisfactory allowed to participate in any such actions, suit or proceeding with counsel of its own choice at the expense of Servicer if, in the good faith judgment of the Indemnified Party’s counsel, representation by Servicer’s counsel may present a conflict of interest or there may be defenses available to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counselwhich are different from or in addition to those available to Servicer. If the Indemnifying Party declines or fails to assume the defense of such Third Party Claim within such thirty (30) day period, however, the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party Servicer will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in settle any jurisdiction in any single Third Party Claim. In any Third Party Claim or Misclassification Claim with respect to which indemnification is being sought hereunderclaim, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right suit or proceeding which would give rise to participate in such matter and to retain Servicer’s liability under its own counsel at such Party’s own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of any matter the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.
indemnity (ci) Subject to the provisions contained in Schedule 10.1(a)(iv), no Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder, including, but not limited to, with respect to Indemnified Misclassification Claims, without the prior written consent of the Indemnifying Party Assignee, which shall consent will not be unreasonably withheld, conditioned or delayed and (it being acknowledged that any ii) unless such settlement which is generally consistent with amounts of prior settlements of Misclassification Claims includes as an unconditional term thereof the giving by the Company claimant or any Company Subsidiary shall be deemed reasonable).
(d) If an plaintiff of a release of the Indemnified Party claims a right Party, in form and substance reasonably satisfactory to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification Claim, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Indemnified Party has given such noticeand its counsel, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation or otherwise) and, within five (5) Business Days of the final determination of the merits and amount of from all liability with respect to such claim, action, suit or proceeding. If Servicer assumes the defense of any claim, action, suit or proceeding as provided in this Agreement, the Indemnified Party will be permitted to join in the defense thereof with counsel of its own selection and its own expense. If Servicer does not assume the defense of any claim, action, suit, or proceeding, the Indemnified Party may defend against such claim, action, suit, or proceeding in such a manner as it may deem appropriate, provided, that the Indemnified Party will not settle any claim, action, suit or proceeding which would give rise to Servicer’s liability under its indemnity (i) if without the Indemnifying Party is an Equity Holder(s)prior written consent of Servicer, such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in immediately available funds an amount equal to such claim as determined hereunderwhich consent will not be unreasonably withheld, and (ii) if unless such settlement includes as an unconditional term thereof the Indemnifying Party is giving by the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf claimant or plaintiff of a release of the Stockholders Servicer, in form and substance reasonably satisfactory to the Warrant Holder) an amount equal Servicer and its counsel, from all liability with respect to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available fundsclaim, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h)action, suit or proceeding.
Appears in 1 contract
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(bi) Promptly after receipt by an a Affiliate Indemnified Party of notice from by a third party of a threatened or filed any complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification hereunderis being sought under this Agreement, such Affiliate Indemnified Party shall provide prompt written notice to Buyer notify the Shareholders of such complaint or of the Equity Holderscommencement of such action or proceeding; PROVIDED, whichever is the appropriate indemnifying Party hereunder (the “Indemnifying Party”); provided, howeverHOWEVER, that the failure to so notify the Indemnifying Party Shareholders shall not relieve the Indemnifying Party Shareholders from liability under this Agreement with respect to for such claim only if, claims except and only to the extent that, that such failure to notify the Indemnifying Party Shareholders results in (i) the forfeiture by of, or otherwise prejudices the Indemnifying Party of material Shareholder's ability to establish, rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party Shareholders with respect to such claim. The Indemnifying Party Shareholders shall have the right, upon written notice delivered to the Affiliate Indemnified Party within thirty (30) days thereafterParty, to assume the defense of such Third Party Claimaction or proceeding, including the employment of counsel reasonably satisfactory to the Affiliate Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counselcounsel as incurred. If the Indemnifying Party declines Shareholders do not elect to assume control of the defense of any such claims, the Shareholders shall be bound by the results otherwise obtained with respect to such claim. In the event, however, that the Shareholders decline or fails fail to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory to such Third Party Claim within Affiliate Indemnified Party, in either case in a timely manner, then such thirty (30) day period, however, the Affiliate Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if action or proceeding and the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will Shareholders shall pay the reasonable fees and disbursements of such counsel as incurredupon receipt of an invoice; providedPROVIDED, howeverHOWEVER, that the Indemnifying Party will Shareholders shall not be required to pay the fees and disbursements of more than one counsel for all Affiliate Indemnified Parties in any jurisdiction in any single Third action or proceeding. However, in the event, that an action or proceeding relating to the Seller Intellectual Property arises after March 31, 2001 in which the Shareholders decline or fail to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory to such Affiliate Indemnified Party Claimin such action or proceeding, in either case in a timely manner, then such Affiliate Indemnified Party may employ counsel to represent or defend it, the Seller or Affiliates in any such action or proceeding relating to the Seller Intellectual Property and Optio shall pay the fees and disbursements of such counsel if it is determined that there is no liability by Buyer, Seller or the Affiliates to such third party. In any Third Party Claim action or Misclassification Claim proceeding with respect to which indemnification is being sought hereunderunder this Agreement, the Affiliate Indemnified Party Parties or the Indemnifying PartyShareholders, whichever is not assuming the defense of such action, shall have the right to participate in such matter litigation and to retain its own counsel at such Party’s party's own expense. The Indemnifying Party Affiliate Indemnified Parties or the Indemnified PartyShareholders, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party Shareholders or the Affiliate Indemnified PartyParties, as the case may be, reasonably apprised of the status of the defense of any matter claim the defense of which they are maintaining maintaining, and to cooperate in good faith with each other with respect to the defense of any such matteraction.
(cii) Subject Notwithstanding anything herein to the provisions contained in Schedule 10.1(a)(ivcontrary (including responsibility for defense of the claim), no Affiliate Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunderfrom the Shareholders under this Agreement, includingunless such settlement, but not limited tocompromise or consent includes an unconditional release of the Shareholders from all liability arising out of such claim, with respect to Indemnified Misclassification Claimsotherwise the prior written consent of the Shareholders must be obtained. The Shareholders shall not, without the prior written consent of Buyer, settle or compromise any claim or consent to the Indemnifying Party entry of any judgment with respect to which shall indemnification is being sought under this Agreement unless such settlement, compromise or consent includes an unconditional release of the Affiliate Indemnified Parties from all liability arising out of such claim and does not be unreasonably withheldcontain any equitable order, conditioned judgment or delayed (it being acknowledged that term which in any settlement which is generally consistent manner affects, restrains or interferes with amounts the business of prior settlements Buyer, any of Misclassification Claims by the Company Affiliate Indemnified Parties or any Company Subsidiary shall be deemed reasonable)of their respective affiliates.
(diii) If an In the event that a Affiliate Indemnified Party claims does claim a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification ClaimAgreement, such Affiliate Indemnified Party shall send written notice of such claim to the appropriate Indemnifying PartyShareholders. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Affiliate Indemnified Party has given such notice, such Affiliate Indemnified Party and the appropriate Indemnifying Party Shareholders shall establish the merits and amount of such claim (by mutual agreementagreement or arbitration as set forth in Section 8.8 hereof). However, litigation Buyer may not make any claim for a Loss unless and until one or otherwise) andmore claims have been made according to this Article VI and the Stock Purchase Agreement, within five and such claims are in excess of $100,000 in the aggregate (5) Business Days the "BASKET AMOUNT"), in which case Buyer shall be entitled to recover all Losses in excess of the final determination of Basket Amount. Notwithstanding the merits and amount of such claimforegoing, the Basket Amount shall not apply with respect to (i) the Purchase Price adjustment for Net Book Value, if the Indemnifying Party is an Equity Holder(sany, to be made in accordance with Section 4.1(a), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in immediately available funds an amount equal to such claim as determined hereunder, and (ii) if any breaches of representations, warranties or covenants contained in Sections 2.4 (Capitalization) or 2.19 (Brokers) or (iii) legal and accounting fees incurred by Seller in connection with this Agreement or the Indemnifying Party is transactions contemplated hereby remaining unpaid after the Closing.
(iv) At Buyer's option, it may setoff against the Buyer shall pay outstanding principal and interest due and payable to (Athe Shareholders under the Promissory Note(s) the Sellers’ Representative payment of any claims due to Buyer under this Article VI.
(on behalf v) Notwithstanding the express language of the Stockholders Master ▇▇▇▇ of Sale, Assignment and Assumption Agreement, Buyer agrees to provide notice of any proposed compromise or settlement and provide the Warrant Holder) an amount equal Affiliate with opportunity to such Stockholders’ and Warrant Holder’s Pro Rata Percentage control the negotiation, litigation, arbitration or mediation of such claim as determined hereunder compromise or settlement or other action which could result in immediately available funds and (B) the Company (on behalf of the Option Holders) a Loss to an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders Affiliate Indemnified Party in accordance with their respective Pro Rata Percentages and subject to the provisions set forth in this Section 2.8(h6.2(b).
Appears in 1 contract
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after following receipt by an Indemnified Party of notice from by a third party (including any Governmental Entity) of a threatened any complaint, dispute or filed complaint claim or the threatened or actual commencement of any audit, investigation, action audit or proceeding other than a Misclassification Claim (a “Third Party Claim”) Proceeding with respect to which such Indemnified Party may be entitled to indemnification hereunderreceive payment from the other Party for any Purchaser Losses or any Seller Losses (as the case may be), such Indemnified Party shall provide prompt written notice thereof to Buyer Purchaser or Sellers, as the Equity Holders, whichever is the appropriate indemnifying Party hereunder case may be (the “Indemnifying Party”); , provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement hereunder with respect to such claim only if, and only to the extent that, such failure to so notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty (30) days thereafter, to assume the defense of such Third Party Claimaudit or Proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If In the event, however, that the Indemnifying Party declines or fails to assume the defense of such Third Party Claim the audit or Proceeding on the terms provided above or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such thirty (30) day 30)-day period, howeverthen any Purchaser Losses or any Seller Losses (as the case may be), the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will pay shall include the reasonable fees and disbursements of such counsel for the Indemnified Party as incurred; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claim. In any Third Party Claim audit or Misclassification Claim with respect to Proceeding for which indemnification is being sought hereunder, hereunder the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter and to retain its own counsel at such Party’s own expense. The Indemnifying Party or the Indemnified Party, Party (as the case may be, ) shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, Party (as the case may be, ) reasonably apprised of the status of the defense of any matter the defense of which they are it is maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.
(cb) Subject to the provisions contained in Schedule 10.1(a)(iv), no No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder, including, but not limited to, with respect to Indemnified Misclassification Claims, hereunder without the prior written consent of the Indemnifying Party (which shall may not be unreasonably withheldwithheld or delayed), conditioned unless (i) the Indemnifying Party fails to assume and maintain the defense of such claim pursuant to Section 10.3(a) or delayed (it ii) such settlement, compromise or consent includes an unconditional release of the Indemnifying Party and its officers, managers, directors, employees and Affiliates from all liability arising out of, or related to, such claim. An Indemnifying Party may not, without the prior written consent of the Indemnified Party, settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being acknowledged sought hereunder unless such settlement, compromise or consent (x) includes an unconditional release of the Indemnified Party and its officers, directors, managers, employees and Affiliates from all liability arising out of, or related to, such claim, (y) does not contain any admission or statement suggesting any wrongdoing or liability on behalf of the Indemnified Party and (z) does not contain any equitable order, judgment or term that in any settlement which is generally consistent manner affects, restrains or interferes with amounts the business of prior settlements of Misclassification Claims by the Company Indemnified Party or any Company Subsidiary shall be deemed reasonable)of the Indemnified Party’s Affiliates.
(dc) If In the event an Indemnified Party claims a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification Claimhereto, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying PartyParty (a “Notice of Claim”). Such notice Notice of Claim shall specify in reasonable detail the basis for such claim. As promptly as possible after The failure by any Indemnified Party so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability that it may have to such Indemnified Party with respect to any claim made pursuant to this Section 10.3(c), it being understood that notices for claims in respect of a breach of a representation or warranty must be delivered prior to the expiration of the survival period for such representation or warranty under Section 10.4. In the event the Indemnifying Party does not notify the Indemnified Party within thirty (30) days following its receipt of such notice that the Indemnifying Party disputes its liability to the Indemnified Party under this Article or the amount thereof, the claim specified by the Indemnified Party in such Notice of Claim shall be conclusively deemed a liability of the Indemnifying Party under this Article X, and the Indemnifying Party shall pay the amount of such liability to the Indemnified Party on demand or, in the case of any notice in which the amount of the claim (or any portion of the claim) is estimated, on such later date when the amount of such claim (or such portion of such claim) becomes finally determined. In the event the Indemnifying Party has given timely disputed its liability with respect to such noticeclaim as provided above, as promptly as possible, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation litigation, arbitration or otherwise) and, within five (5) Business Days of following the final determination of the merits and amount of such claim, (i) the Indemnifying Party shall pay to the Indemnified Party immediately available funds or, if the Indemnifying Party is an Equity Holder(s)a Seller, such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 orhave Consideration Shares cancelled in accordance with the terms of this Agreement, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent toin each case, pay to Buyer in immediately available funds an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h).
Appears in 1 contract
Sources: Asset Purchase Agreement (Startengine Crowdfunding, Inc.)
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt by an a Purchaser Indemnified Party or a Seller Indemnified Party (hereinafter collectively referred to as an "Indemnified Party") of notice from by a third party of a threatened or filed any complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification hereunderreceive payment from the other party for any Purchaser Losses or Seller Losses (as the case may be), such Indemnified Party shall provide prompt written notice to Buyer notify Purchaser or the Equity HoldersSellers within 30 days, whichever whoever is the appropriate indemnifying Party party hereunder (the “"Indemnifying Party”"), of such complaint or of the commencement of such action or proceeding; providedPROVIDED, howeverHOWEVER, that the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from liability for such claim arising otherwise than under this Agreement and such failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty (30) 20 days thereafter, to assume the defense of such Third Party Claimaction or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If In the event, however, that the Indemnifying Party declines or fails to assume the defense of such Third Party Claim the action or proceeding within such thirty (30) 20-day period, however, the then such Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if action or proceeding and the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will shall pay the reasonable fees and disbursements of such counsel as incurred; providedPROVIDED, howeverHOWEVER, that the Indemnifying Party will shall not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claimaction or proceeding. In any Third Party Claim action or Misclassification Claim proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter litigation and to retain its own counsel at such Party’s party's own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any matter action the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matteraction.
(cb) Subject If the Indemnifying Party assumes the defense of a claim pursuant to the provisions contained in Schedule 10.1(a)(ivSection 9.3(a), no Indemnified Party may settle or compromise such claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder without the prior written consent of the Indemnifying Party, unless such settlement, compromise or consent includes an unconditional release of the Indemnifying Party from all liability arising out of such claim at no cost to the Indemnifying Party. An Indemnifying Party may not, without the prior written consent of the Indemnified Party, settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunderhereunder unless such settlement, including, but not limited to, with respect to Indemnified Misclassification Claims, without the prior written compromise or consent includes an unconditional release of the Indemnifying Indemnified Party from all liability arising out of such claim and does not contain any equitable order, judgment or term which shall not be unreasonably withheldin any manner affects, conditioned restrains or delayed (it being acknowledged that any settlement which is generally consistent interferes with amounts the business of prior settlements of Misclassification Claims by the Company Indemnified Party or any Company Subsidiary shall be deemed reasonable)of the Indemnified Party's respective Affiliates.
(dc) If In the event an Indemnified Party claims shall claim a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification ClaimAgreement, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation litigation, arbitration or otherwise) and, within five (5) Business Days business days of the agreement or the final determination judgment (with respect to litigation and arbitration not subject to further appeal) of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in the Indemnified Party immediately available funds in an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h).
Appears in 1 contract
Indemnification Procedure. (ai) The Buyer Person seeking indemnification under this Section 7.3 (the “Indemnified Party”) shall have the right to control and defend, with counsel of its choosing reasonably acceptable give to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(bparty(ies) Promptly after receipt by an Indemnified Party of notice from a third party of a threatened or filed complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to whom indemnification hereunder, such Indemnified Party shall provide prompt written notice to Buyer or the Equity Holders, whichever is the appropriate indemnifying Party hereunder sought (the “Indemnifying Party”) prompt written notice (in the case of indemnification under Section 7.3(a), such notice shall be given to the Shareholders’ Agent) of any third-party claim which may give rise to any indemnity obligation under this Section 7.3, and the Indemnifying Party will have the right to assume the defense of any such claim through counsel of its own choosing, by so notifying the Indemnified Party within 10 days of receipt of the Indemnified Party’s written notice; provided, however, that such counsel shall be reasonably satisfactory to the Indemnified Party. Failure of the Indemnified Party to give prompt notice shall not affect the Indemnifying Party’s indemnification obligations hereunder except to the extent the Indemnifying Party is materially prejudiced by such failure. If the Indemnified Party desires to participate in any such defense assumed by the Indemnifying Party, it may do so at its sole cost and expense; provided, however, that the failure Indemnified Party will be entitled to so notify participate in any such defense with separate counsel at the expense of the Indemnifying Party shall relieve if, in the reasonable judgment of counsel to the Indemnified Party, a conflict or potential conflict exists, or there are separate or additional defenses available to the Indemnified Party, that would make such separate representation advisable. If the Indemnifying Party from liability under this Agreement with respect declines to assume any such claim only ifdefense or fails to diligently pursue any such defense, and only to the extent that, such failure to notify then the Indemnifying Party results in (i) the forfeiture will be liable for all reasonable costs and expenses incurred by the Indemnifying Indemnified Party in connection with investigating, defending, settling and/or otherwise dealing with such claim, including reasonable fees and disbursements of material rights and defenses otherwise available counsel. The parties hereto agree to cooperate with each other in connection with the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to defense of any such claim. The Indemnifying Party shall have will not, without the right, upon prior written notice delivered to the Indemnified Party within thirty (30) days thereafter, to assume the defense consent of such Third Party Claim, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If the Indemnifying Party declines or fails to assume the defense of such Third Party Claim within such thirty (30) day period, however, the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claim. In any Third Party Claim or Misclassification Claim with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter and to retain its own counsel at such Party’s own expense. The Indemnifying Party or the Indemnified Party, as the case may besettle, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Partycompromise, as the case may be, reasonably apprised of the status of any matter the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.
(c) Subject to the provisions contained in Schedule 10.1(a)(iv), no Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunderany such claim, includingunless such settlement, but compromise or judgment (A) does not limited toresult in the imposition of a consent order, with respect to injunction or decree that would restrict the future activity or conduct of the Indemnified Misclassification ClaimsParty or any Affiliate thereof, (B) does not involve any remedies other than monetary damages, and (C) includes an unconditional release of the Indemnified Party and its Affiliates for all liability arising out of such claim and any related claim. The Indemnified Party will not, without the prior written consent of the Indemnifying Party Party, which shall will not be unreasonably withheld, conditioned delayed or delayed (it being acknowledged that conditioned, settle, compromise, or consent to the entry of any settlement which is generally consistent judgment with amounts of prior settlements of Misclassification Claims by the Company or respect to any Company Subsidiary shall be deemed reasonable)such claim.
(dii) If an indemnification claim by any Indemnified Party claims a right to payment pursuant to this Agreement is not involving a Third disputed by the Indemnifying Party Claim or a Misclassification Claim, such Indemnified Party shall send within 20 days after the Indemnifying Party’s having received written notice thereof, or has been resolved by a Law of such a Governmental Entity, by a settlement of the indemnification claim to in accordance with Section 7.3(c)(i) or by agreement of the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation or otherwise) and, within five (5) Business Days any of the final determination of the merits and amount of such claimforegoing, (i) if the Indemnifying Party is an Equity Holder(sa “Resolution”), such Equity Holder(sthen (A) shallin the case of indemnification under Section 7.3(b), subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, Parent will pay to Buyer in immediately available funds the Shareholder Indemnified Party promptly following such Resolution an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage Losses of such claim Shareholder Indemnified Party as determined hereunder set forth in immediately available funds and such Resolution, or (B) in the Company (on behalf case of indemnification under Section 7.3(a), Parent will deliver evidence of such Resolution to the Escrow Agent and the Shareholders’ Agent, whereupon the Escrow Agent will deliver to the Parent Indemnified Party an amount from the Escrow Amount equal to the Losses of such Parent Indemnified Party as set forth in such Resolution. The amount of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute Escrow Amount delivered to the Option Holders Parent Indemnified Party in accordance with their respective Pro Rata Percentages the immediately preceding sentence and subject the Escrow Agreement will reduce the Closing Cash Payment on a pro rata basis among the Shareholders determined in accordance with the allocation of the Closing Cash Payment set forth in Section 2.1(b) of the Company Disclosure Schedule. Except as otherwise specifically provided in Section 7.3(d), the termination of the Escrow Agreement or the depletion of the Escrow Amount will not serve as a bar to recovery by the Parent Indemnified Parties from the Shareholders of any indemnifiable Losses, and the Parent Indemnified Parties will be entitled to look directly to the Shareholders for any Losses in excess of the Escrow Amount held by the Escrow Agent, and such Losses will be the obligations of the Shareholders as provided in Section 2.8(h)7.3(a) and will be paid to the applicable Parent Indemnified Party promptly following such Resolution.
Appears in 1 contract
Sources: Merger Agreement (Selectica Inc)
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after following receipt by an a Purchaser Indemnified Party or a Seller Indemnified Party (an “Indemnified Party”) of notice from by a third party (including any Regulatory Authority) of a threatened or filed any complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification hereunderreceive payment from the other party for any Loss, such Indemnified Party shall provide prompt written notice to Buyer notify the Purchaser, the Seller or the Equity HoldersShareholder, whichever is as the appropriate indemnifying Party hereunder case may be (the “Indemnifying Party”), promptly following the Indemnified Party’s receipt of such complaint or of notice of the commencement of such audit, investigation, action or proceeding; provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement hereunder with respect to such claim only if, and only to the extent that, such failure to so notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty twenty (3020) days thereafterthereafter assuming full responsibility for any Losses resulting from such audit, investigation, action or proceeding, to assume the defense of such Third Party Claimaudit, investigation, action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If the Indemnifying Party declines or fails to assume the defense of such Third Party Claim within such thirty (30) day period, however, the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claim. In any Third Party Claim or Misclassification Claim with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter and to retain its own counsel at such Party’s own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of any matter the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.
(c) Subject to the provisions contained in Schedule 10.1(a)(iv), no Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder, including, but not limited to, with respect to Indemnified Misclassification Claims, without the prior written consent of the Indemnifying Party which shall not be unreasonably withheld, conditioned or delayed (it being acknowledged that any settlement which is generally consistent with amounts of prior settlements of Misclassification Claims by the Company or any Company Subsidiary shall be deemed reasonable).
(d) If an Indemnified Party claims a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification Claim, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation or otherwise) and, within five (5) Business Days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in immediately available funds an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h).such
Appears in 1 contract
Sources: Asset Purchase Agreement (TRM Corp)
Indemnification Procedure. (a) The Buyer If any Purchaser Indemnified Party intends to seek indemnification pursuant to this Article IX, such Purchaser Indemnified Party shall have the right to control and defend, with counsel promptly notify Sellers by providing written notice of its choosing reasonably acceptable such claim to the Sellers’ RepresentativeSellers Representative in writing. The Purchaser Indemnified Party will provide the Sellers Representative with prompt notice of any third-party claim in respect of which indemnification is sought. The failure to provide either such notice will not affect any rights hereunder except to the extent Sellers are materially prejudiced thereby. For avoidance of doubt, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations it is understood and acknowledged by the parties that Sellers shall not be liable for indemnification of the Purchaser Indemnified Parties with respect to any claim for a breach or reviews that relate to Indemnified Misclassification Claimsrepresentation and warranty for which notice of such claim is received after the expiration of survival periods set forth in Section 9.1 above.
(b) Promptly after receipt If such claim involves a claim by an a third-party against the Purchaser Indemnified Party of notice from a third party of a threatened or filed complaint or Parties, the threatened or actual commencement of any auditSellers Representative may, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification hereunder, such Indemnified Party shall provide prompt written upon notice to Buyer the Purchaser Indemnified Parties, assume, through counsel of the Sellers Representative’s choosing and at Sellers’ expense, the settlement or defense thereof, and the Equity Holders, whichever is Purchaser Indemnified Parties shall reasonably cooperate with the appropriate indemnifying Party hereunder (Sellers Representative in connection therewith; provided that the “Indemnifying Party”)Purchaser Indemnified Parties may participate in such settlement or defense through counsel chosen by them; provided, howeverfurther, that if the failure Purchaser Indemnified Parties reasonably determine that representation by the counsel of the Sellers Representative and the Purchaser Indemnified Parties may present such counsel with a conflict of interests, then the Sellers shall pay the reasonable and actual fees and expenses of the Purchaser Indemnified Parties’ counsel. Notwithstanding anything in this Section 9.3 to so notify the Indemnifying Party shall relieve contrary, the Indemnifying Party from liability under this Agreement with respect Sellers Representative may not, without the prior written consent of the Purchaser Indemnified Parties, settle or compromise any action or consent to the entry of any judgment, such consent not to be unreasonably withheld. So long as the Sellers Representative is contesting any such claim only ifin good faith, and only to the extent thatPurchaser Indemnified Parties shall not pay or settle any such claim without the Sellers Representative consent, such failure consent not to notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty (30) days thereafter, to assume the defense of such Third Party Claim, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counselunreasonably withheld. If the Indemnifying Party declines or fails to assume Sellers Representative is not contesting such claim in good faith, then the defense Purchaser Indemnified Parties may conduct and control, through counsel of such Third Party Claim within such thirty (30) day period, howevertheir own choosing and at the expense of the Sellers Representative, the Indemnified Party may employ counsel to represent settlement or defend defense thereof, and Sellers and the Sellers Representative shall cooperate with it in any such Third Party Claim and, if connection therewith. The failure of the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Purchaser Indemnified Parties in any jurisdiction in any single Third Party Claim. In any Third Party Claim to participate in, conduct or Misclassification Claim with respect to which indemnification is being sought hereunder, the Indemnified Party control such defense shall not relieve Sellers or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter and to retain its own counsel at such Party’s own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status Sellers Representative of any matter the defense of which obligation they are maintaining and to cooperate in good faith with each other with respect to the defense of any such mattermay have hereunder.
(c) Subject Notwithstanding anything to the provisions contained contrary in Schedule 10.1(a)(iv)this Section 9.3, no to the extent a claim for which indemnification is sought by Purchaser Indemnified Party may Parties relates to Taxes for a taxable period beginning on or before and ending after the Closing Date, the Sellers Representative and Purchaser shall jointly control any proceeding in respect of such claim and neither party shall settle or compromise any claim action or consent to the entry of any judgment with respect to which indemnification is being sought hereunder, including, but not limited to, with respect to Indemnified Misclassification Claims, thereto without the prior written consent of the Indemnifying Party which shall other party, such consent not to be unreasonably withheld, conditioned or delayed (it being acknowledged that any settlement which is generally consistent with amounts of prior settlements of Misclassification Claims by the Company or any Company Subsidiary shall be deemed reasonable).
(d) If an Indemnified Party claims a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification Claim, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation or otherwise) and, within five (5) Business Days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in immediately available funds an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h).
Appears in 1 contract
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt by an a Buyer Indemnified Party or a Seller Indemnified Party (hereinafter collectively referred to as an "Indemnified Party") of notice from by a third party (including any Governmental Entity) of a threatened or filed any complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification hereunderreceive payment from the other Party for any Buyer Losses or Seller Losses (as the case may be), such Indemnified Party shall provide prompt written notice to Buyer will notify GETS or Wabtec, as the Equity Holders, whichever is the appropriate indemnifying Party hereunder case may be (the “"Indemnifying Party”"), promptly following the Indemnified Party's receipt of such complaint or of notice of the commencement of such audit, investigation, action or proceeding; provided, however, that the failure to so notify the Indemnifying Party shall will relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claimis prejudiced thereby. The Indemnifying Party shall will have the right, upon written notice delivered to the Indemnified Party within thirty ten (3010) days thereafter, to assume the defense of such Third Party Claimaudit, investigation, action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If If, however, the Indemnifying Party declines or fails to assume the defense of such Third Party Claim the audit, investigation, action or proceeding on the terms provided above or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such thirty ten (30) day 10)-day period, however, the then such Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim andaudit, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in questioninvestigation, action or proceeding and the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one (1) counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claimaudit, investigation, action or proceeding. In any Third Party Claim audit, investigation, action or Misclassification Claim proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall will have the right to participate in such matter and to retain its own counsel at such Party’s 's own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall will at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any matter the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.
(cb) Subject to the provisions contained in Schedule 10.1(a)(iv), no No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunderhereunder without the prior written consent of the Indemnifying Party, includingunless (i) the Indemnifying Party fails to assume and maintain the defense of such claim pursuant to Section 12.4(a) or (ii) such settlement, but not limited to, with respect to Indemnified Misclassification Claimscompromise or consent includes an unconditional release of the Indemnifying Party from all liability arising out of such claim. An Indemnifying Party may not, without the prior written consent of the Indemnifying Indemnified Party, settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder unless (i) such settlement, compromise or consent includes an unconditional release of the Indemnified Party from all liability arising out of such claim, (ii) does not contain any admission or statement suggesting any wrongdoing or liability on behalf of the Indemnified Party and (iii) does not contain any equitable order, judgment or term which shall not be unreasonably withheldin any manner affects, conditioned restrains or delayed (it being acknowledged that any settlement which is generally consistent interferes with amounts the business of prior settlements of Misclassification Claims by the Company Indemnified Party or any Company Subsidiary shall be deemed reasonable)of the Indemnified Party's Affiliates.
(dc) If an In the event any Indemnified Party claims should have a right to payment pursuant to this Agreement claim for indemnity against any Indemnifying Party that does not involving involve a Third Party Claim or a Misclassification Claimthird party claim, such the Indemnified Party shall send written deliver notice of such claim with reasonable promptness to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after The failure by any Indemnified Party so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability that it may have to such Indemnified Party with respect to any claim made pursuant to this Section 12.4(c), it being understood that notices for claims in respect of a breach of a representation or warranty must be delivered prior to the expiration of the applicable Claims Period for such representation or warranty under Section 12.5. If the Indemnifying Party disputes its liability with respect to such claim, such Indemnifying Party and the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall will establish the merits and amount of such claim (by mutual agreement, litigation or otherwise) and, within five (5) Business Days business days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, will pay to Buyer in the Indemnified Party immediately available funds in an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h).
Appears in 1 contract
Sources: Purchase Agreement (Westinghouse Air Brake Technologies Corp)
Indemnification Procedure. (a) The Buyer Any party seeking indemnification hereunder (the "Indemnified Party") shall have the right to control and defend, with counsel of its choosing reasonably acceptable give prompt notice (a "Certificate") to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
party from which indemnification is sought (bthe "Indemnifying Party") Promptly after receipt by an Indemnified Party of notice from a third party of a threatened or filed complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to claim for indemnification hereunder, such Indemnified Party shall provide prompt written notice to Buyer or the Equity Holders, whichever is the appropriate indemnifying Party hereunder (the “Indemnifying Party”); provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty (30) days thereafter, to assume the defense of such Third Party Claim, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If the Indemnifying Party declines or fails to assume the defense of such Third Party Claim within such thirty (30) day period, however, the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claim. In any Third Party Claim or Misclassification Claim with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter and to retain its own counsel at such Party’s own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of any matter the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.
(c) Subject to the provisions contained in Schedule 10.1(a)(iv), no Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder, including, but not limited to, with respect to Indemnified Misclassification Claims, without the prior written consent of the Indemnifying Party which shall not be unreasonably withheld, conditioned or delayed (it being acknowledged that any settlement which is generally consistent with amounts of prior settlements of Misclassification Claims by the Company or any Company Subsidiary shall be deemed reasonable).
(d) If an Indemnified Party claims a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification Claim, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for any anticipated liability and the provisions of this Agreement pursuant to which such Indemnified Party claims to be entitled to indemnification hereunder. The failure to so notify the Indemnifying Party shall not limit any of the obligations of the Indemnifying Party (except to the extent such failure materially prejudices the Indemnifying Party).
(b) In case the Indemnifying Party shall object to the indemnification of an Indemnified Party in respect of any claim or claims specified in any Certificate, the Indemnifying Party shall, within ten (10) Business Days after receipt by the Indemnifying Party of such Certificate, deliver to the Indemnified Party a written notice to such effect and the Indemnifying Party and the Indemnified Party shall, within the ten (10) Business Day period beginning on the date of receipt by the Indemnified Party of such written objection, attempt in good faith to agree upon the rights of the respective parties with respect to each of such claims to which the Indemnifying Party shall have so objected. If the Indemnified Party and the Indemnifying Party shall succeed in reaching agreement on their respective rights with respect to any of such claims, the Indemnified Party and the Indemnifying Party shall promptly prepare and sign a memorandum setting forth such agreement.
(c) Claims for Damages specified in any Certificate to which an Indemnifying Party shall not object in writing within ten (10) Business Days of receipt of such Certificate, claims for Damages covered by a memorandum of agreement of the nature described in Section 9.4(b) and claims for Damages the validity and amount of which have been the subject of a final and binding judicial determination, the time for appeal having expired, are hereinafter referred to, collectively, as "Agreed Claims." Within ten (10) Business Days of the determination of the amount of any Agreed Claims, subject to the limitations of this Article IX, the Indemnifying Party shall pay to the Indemnified Party an amount equal to the Agreed Claim by cashier's check or wire transfer to the bank account or accounts designated in writing by the Indemnified Party not less than one (1) Business Day prior to such payment.
(d) Promptly after the assertion by any third party of any claim against any Indemnified Party that in the reasonable judgment of such Indemnified Party may result in the incurrence by such Indemnified Party of Damages for which such Indemnified Party would be entitled to indemnification pursuant to this Agreement, such Indemnified Party shall deliver to the Indemnifying Party a written notice describing in reasonable detail such claim, but any failure on the part of the Indemnified Party to provide prompt notice shall not limit any of the obligations of the Indemnifying Party (except to the extent such failure materially prejudices the defense of such claim). For a period of fifteen (15) Business Days following its receipt of the notice specified in the previous sentence, the Indemnifying Party may, at its option, elect to assume the defense of the Indemnified Party against such claim (and, in such event, the Indemnifying Party shall promptly employ counsel, who shall be reasonably satisfactory to such Indemnified Party) at such Indemnifying Party's expense. If the Indemnifying Party elects to assume such defense, then the Indemnifying Party shall diligently defend any such claim as if such Indemnifying Party had 100% of the liability with respect to such claim. As promptly as possible Any Indemnified Party shall have the right but not the obligation to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (i) the Indemnifying Party shall have failed, within fifteen (15) Business Days after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim or to notify the Indemnified Party in writing that it shall assume the defense of such claim, (ii) the employment of such counsel has given been specifically authorized in writing by the Indemnifying Party, or (iii) the named parties to any such notice, action (including any impleaded parties) include both such Indemnified Party and the appropriate Indemnifying Party and such Indemnified Party shall have been advised by such counsel that there may be one or more legal defenses available to the Indemnifying Party which are not available to, or the assertion of which would be adverse to the interests of, the Indemnified Party. No Indemnifying Party shall establish the merits and amount be liable to indemnify any Indemnified Party for any settlement of such action or claim (by mutual agreement, litigation or otherwise) and, within five (5) Business Days effected without the consent of the final determination of the merits and amount of Indemnifying Party, which consent may not be unreasonably withheld, delayed or conditioned, it being understood that it shall be unreasonable to withhold, delay or condition any such claim, (i) if consent unless the Indemnifying Party has acknowledged that it has an obligation to indemnify the Indemnified Party with respect to such action or claim. Notwithstanding any other provision of this Agreement, Sellers shall not settle or compromise any claim, including any Company Liability or any Legal Proceedings relating to CCM, the Company or any of their respective Subsidiaries without the prior written consent of Purchaser unless such settlement or compromise (a) is an Equity Holder(ssolely for monetary amounts for which Sellers have agreed to indemnify Purchaser Indemnitees and (b) such settlement or compromise does not include any acknowledgement or statement or admission of liability or statement which could reasonably be expected to be adverse to Purchaser or its Affiliates and includes a complete and unconditional release of the Purchaser Indemnitees. Notwithstanding anything to the contrary contained in this Agreement, Parent shall assume, at Parent's expense, the defense and control of all Legal Proceedings relating to the Company or any of its Subsidiaries, regardless of whether such Legal Proceedings are described in the Disclosure Schedule, including the consolidated IPO litigation matters identified on Section 9.2(b) of the Disclosure Schedule. Purchaser agrees to cooperate in all reasonable respects in the defense of claims covered by this Section 9.4(d), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 orincluding, as applicablerequired, the Sellers’ Representative (on behalf furnishing of books and records, personnel and witnesses and the Equity Holders) shall cause the Escrow Agent toexecution of documents, pay to Buyer in immediately available funds an amount equal to each case as reasonably necessary for such claim as determined hereunderdefense, and (ii) if the Indemnifying Party is the Buyer, the Buyer all out-of-pocket costs and expenses incurred by Purchaser or Purchaser II or any of their Affiliates in connection therewith shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim be Damages paid by Sellers as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h)incurred.
Appears in 1 contract
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt by an a Parent Indemnified Party or a Stockholder Indemnified Party (hereinafter, as applicable, an “Indemnified Party”) of notice from by a third party (including any Governmental Entity) of a threatened or filed complaint any Actions or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) audit with respect to which such Indemnified Party may be entitled to indemnification hereunderreceive payment hereunder for any Parent Losses or any Stockholder Losses (as the case may be), such Indemnified Party shall provide prompt written notice to Buyer notify Parent or the Equity HoldersStockholder Representative (on behalf of any Stockholder Indemnified Party), whichever is as the appropriate indemnifying Party hereunder case may be (in such capacity, Parent or the Stockholder Representative are hereinafter referred to as an “Indemnifying Party”), of such Action or audit; provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim Action only if, and only to the extent that, such failure to notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim Action or the Indemnifying Party is otherwise materially prejudiced. Unless (i) the Indemnifying Party is also a party to such Action and the Indemnified Party’s counsel shall have advised the Indemnified Party that a conflict of interests exists that would make joint representation inappropriate or (ii) material prejudice to the Indemnifying Party with respect fails to provide reasonable assurance to the Indemnified Party of its financial capacity to defend such claim. The Action, the Indemnifying Party shall will have the right, at its sole expense, upon written notice delivered to the Indemnified Party within thirty (30) twenty calendar days thereafterafter receiving such notice, to assume the defense of such Third Action with counsel selected by the Indemnifying Party Claimand reasonably satisfactory to the Indemnified Party; provided, including that the employment Indemnifying Party shall have acknowledged in writing to the Indemnified Party its unqualified obligation to fully indemnify the Indemnified Party pursuant to this Article VII. In the event, however, that the Indemnifying Party (A) declines or fails to (1) assume the defense of the Action on the terms provided above, (2) provide reasonable assurance to the Indemnified Party of its financial capacity to defend such Action and provide indemnification with respect to such Action or (3) employ counsel reasonably satisfactory to the Indemnified Party, in any case within such twenty-day period, or (B) the Indemnifying Party (is also a party to such Action and Buyer hereby acknowledges that King & Spalding LLP the Indemnified Party’s counsel shall be satisfactory to have advised the Indemnified Party if Buyer is the Indemnified Party) and the payment that a conflict of the fees and disbursements of interests exists that would make joint representation inappropriate, then such counsel. If the Indemnifying Party declines or fails to assume the defense of such Third Party Claim within such thirty (30) day period, however, the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if Action and the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will shall pay the reasonable fees and disbursements of such counsel as incurredto the extent that a final non-appealable judgment has been entered, a final arbitration decision has been rendered pursuant to Section 8.7 hereof, or the Parties mutually agree that the Indemnified Party is entitled to indemnification under this Article VII with respect to such Action or audit; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Action. For avoidance of doubt, the reasonable fees and disbursements of counsel of any Parent Indemnified Party Claimin connection with a Parent Loss shall be satisfied by receiving from the Escrow Agent a portion of the Escrow Amount in an amount equal to such fees. In any Third Party Claim or Misclassification Claim Action with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such actionAction, shall will have the right to participate in such matter and to retain its own counsel at such Party’s own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use reasonable efforts Reasonable Efforts to keep the Indemnifying Indemnified Party or the Indemnified Indemnifying Party, as the case may be, reasonably apprised of the status of the defense of any matter Action the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matterAction.
(cb) Subject to the provisions contained in Schedule 10.1(a)(iv), no No Indemnified Party may settle or compromise any Claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder without the prior written consent of the Indemnifying Party, unless (i) the Indemnifying Party fails to assume and maintain the defense of such Claim pursuant to Section 7.3(a) or (ii) such settlement, compromise or consent includes an unconditional release of the Indemnifying Party from all liability arising out of such Claim. An Indemnifying Party may not, without the prior written consent of the Indemnified Party, settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunderhereunder unless such settlement, includingcompromise or consent (i) includes an unconditional release of the Indemnified Party from all liability arising out of such claim, but (ii) does not limited tocontain any admission or statement suggesting any wrongdoing or liability on behalf of the Indemnified Party and (iii) does not contain any equitable order, judgment or term which in any manner affects, restrains or interferes with respect the business of the Indemnified Party or any of the Indemnified Party’s Affiliates.
(c) A Claim for indemnification by an Indemnified Party for any matter not involving an Action by a third party may be asserted by written notice to Indemnified Misclassification Claims, without the prior written consent of the Indemnifying Party which shall not be unreasonably withheld, conditioned or delayed (it being acknowledged that any settlement which from whom indemnification is generally consistent with amounts of prior settlements of Misclassification Claims by the Company or any Company Subsidiary shall be deemed reasonable).
(d) If an Indemnified Party claims a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification Claim, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Partysought. Such notice shall will specify in with reasonable detail specificity the basis for such claimClaim. As promptly as possible practicable after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall negotiate in good faith to establish the merits and amount of such claim (Claim by mutual agreement. If mutual agreement cannot be reached within a reasonable amount of time (not to exceed 90 days), litigation or otherwise) andsuch Claim shall be submitted to binding arbitration in accordance with Section 8.7 hereof. Subject to the terms, conditions and limitations contained in this Agreement, within five ten (510) Business Days of the final determination of the merits and amount of such claimClaim (whether by mutual agreement or by binding arbitration in accordance with Section 8.7), (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in the Indemnified Party immediately available funds (or, if the Indemnified Party is a Parent Indemnified Party, such payment shall be made from the remaining Escrow Amount in accordance with this Article VII) in an amount equal to such claim Claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h).
Appears in 1 contract
Indemnification Procedure. Each party entitled to indemnification under this Section 6 (athe "INDEMNIFIED PARTY") The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable give notice to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate party required to Indemnified Misclassification Claims.
provide indemnification (bthe "INDEMNIFYING PARTY") Promptly promptly after receipt by an Indemnified Party of notice from a third party of a threatened or filed complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party has received written notice of any claim as to which indemnity may be entitled to indemnification hereundersought, such Indemnified Party and shall provide prompt written notice to Buyer or the Equity Holders, whichever is the appropriate indemnifying Party hereunder (the “Indemnifying Party”); provided, however, that the failure to so notify permit the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty (30) days thereafter, to assume the defense of any such Third Party Claimclaim or any litigation resulting therefrom, including provided such -------------------------------------------------------------------------------- EXHIBIT J Page 6 of 11 counsel for the employment Indemnifying Party, who shall conduct the defense of counsel reasonably satisfactory to such claim or litigation, shall be approved by the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP whose approval shall not be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counselunreasonably withheld or delayed). If the Indemnifying Party declines or fails to assume the defense of such Third Party Claim within such thirty (30) day period, however, the The Indemnified Party may employ counsel to represent or defend it participate in any such Third Party Claim and, if the Indemnifying Party agrees that defense at such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurredParty's expense; provided, however, that the Indemnifying Party will not be required to pay shall bear the fees and disbursements expense of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claim. In any Third Party Claim or Misclassification Claim with respect to which indemnification is being sought hereunder, such defense of the Indemnified Party or if (i) the Indemnifying PartyParty has agreed in writing to pay such expenses, whichever is not assuming (ii) the Indemnifying Party shall have failed to assume the defense of such action, shall have the right claim or employ counsel reasonably satisfactory to participate in such matter and to retain its own counsel at such Party’s own expense. The Indemnifying Party or the Indemnified Party, as or (iii) in the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or judgment of the Indemnified Party, as based upon the case may bewritten advice of such Indemnified Party's counsel, reasonably apprised representation of both parties by the status same counsel would be inappropriate due to actual or potential conflicts of any matter the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.
(c) Subject to the provisions contained in Schedule 10.1(a)(iv), no interest. The Indemnified Party may settle or compromise shall not make any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder, including, but not limited to, with respect to Indemnified Misclassification Claims, settlement without the prior written consent of the Indemnifying Party Party, which consent shall not be unreasonably withheldwithheld or delayed. The failure of any Indemnified Party to give notice as provided herein shall relieve the Indemnifying Party of its obligations under this Section only to the extent that such failure to give notice shall materially adversely prejudice the Indemnifying Party in the defense of any such claim or any such litigation. No Indemnifying Party, conditioned in the defense of any such claim or delayed (it being acknowledged that litigation, shall, except with the prior written consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement which is generally consistent with amounts of prior settlements of Misclassification Claims does not include as an unconditional term thereof the giving by the Company claimant or any Company Subsidiary shall be deemed reasonable).
(d) If an Indemnified Party claims a right plaintiff to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification Claim, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify a release from all liability in reasonable detail the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation or otherwise) and, within five (5) Business Days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in immediately available funds an amount equal respect to such claim as determined hereunder, or litigation in form and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal substance reasonably satisfactory to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h)Indemnified Party.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Evergreen Resources Inc)
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt by an a Buyer Indemnified Party or a Shareholder Indemnified Party, as applicable (referred to herein as an "Indemnified Party"), of notice from by a third party of a threatened or filed any complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification hereunderreceive payment from the other party for any Losses, such Indemnified Party shall provide prompt written notice notify the Shareholders' Representative or Buyer, as applicable (referred to Buyer or herein as the Equity Holders, whichever is the appropriate indemnifying Party hereunder (the “"Indemnifying Party”"), within 20 days of such complaint or of the commencement of such action or proceeding; provided, however, that the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from liability for such claim arising otherwise than under this Agreement, and such failure shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty (30) 30 days thereafter, to assume the defense of such Third Party Claimaction or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If In the event, however, that the Indemnifying Party declines or fails to assume the defense of such Third Party Claim the action or proceeding or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such thirty (30) -day period, however, then the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if action or proceeding and the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will shall not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claimaction or proceeding. In any Third Party Claim action or Misclassification Claim proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter action or proceeding and to retain its own counsel at such Party’s party's own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, other party reasonably apprised of the status of any matter the defense of which they are maintaining any action and to cooperate in good faith with each other with respect to the defense of any such matteraction.
(cb) Subject to the provisions contained in Schedule 10.1(a)(iv), no No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder, includingunless the Indemnifying Party fails to assume and maintain the defense of such claim pursuant to Section 8.2(a); provided, but however, that such claim shall not limited to, with respect to Indemnified Misclassification Claims, be settled or compromised without the prior written consent of the Indemnifying Party Party, which shall not be unreasonably withheldwithheld or delayed. An Indemnifying Party may not, conditioned without the prior written consent of any Indemnified Party, settle or delayed compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder unless (it being acknowledged that i) simultaneously with the effectiveness of such settlement, compromise or consent, the Indemnifying Party pays in full any settlement obligation imposed on the Indemnified Party by such settlement, compromise or consent and (ii) such settlement, compromise or consent does not contain any equitable order, judgment or term which is generally consistent in any manner affects, restrains or interferes with amounts the business of prior settlements of Misclassification Claims by the Company Indemnified Party or any Company Subsidiary shall be deemed reasonable)of the Indemnified Party's affiliates.
(dc) If In the event an Indemnified Party claims shall claim a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification ClaimAgreement, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify Party in reasonable detail accordance with the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party Escrow Agreement and the appropriate Indemnifying Party shall establish the merits and amount of such claim shall be handled in accordance with the Escrow Agreement.
(by mutual agreementd) The Shareholders' Representative shall have the right to pay all costs and expenses incurred in investigating, litigation or otherwisedefending (including reasonable fees and disbursements of counsel), settling, compromising and paying third party claims as described and authorized in Sections 8.2(a) and, within five (5and 8.2(b) Business Days out of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) Escrow Fund. The Escrow Agreement shall cause direct the Escrow Agent to, to pay such amounts out of the Escrow Fund to Buyer and for the benefit of the Shareholders' Representative upon his demand.
(e) If any provisions of this Section 8.2 conflict with the procedures and administration set forth in immediately available funds an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the BuyerSection 5.7, the Buyer applicable provisions of Section 5.7 shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h)control.
Appears in 1 contract
Sources: Merger Agreement (Harland John H Co)
Indemnification Procedure. The obligation of the Company, Buyer, Parent or Seller, as applicable (a) The Buyer shall have the right "INDEMNIFYING PARTY"), to control indemnify, hold harmless, defend and defendreimburse another party (the "INDEMNIFIED PARTY", with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt by an Indemnified Party of notice from a third party of a threatened or filed complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) which with respect to Seller shall also include all Seller Indemnified Persons and with respect to the Buyer shall also include all Buyer Indemnified Persons) under Section 11.01 hereof with respect to any claim for which such indemnification is sought (a "CLAIM") is conditioned upon receiving from such Indemnified Party may be entitled to indemnification hereunder, written notice of such Claim promptly after such Indemnified Party shall provide prompt written notice to Buyer or the Equity Holders, whichever is the appropriate indemnifying Party hereunder (the “Indemnifying Party”)becomes aware of such Claim; provided, however, that the failure to so notify the Indemnifying Party any delay in giving such notice shall relieve the not release an Indemnifying Party from liability its obligations under this Agreement with respect Article XI except to such claim only if, the extent and only to the extent that, that such failure to notify the Indemnifying Indemnified Party results in (i) the forfeiture was prejudiced by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claimdelay. The Indemnifying Party shall at its sole expense defend, contest, settle or otherwise protect against any Claim (including without limitation by taking reasonably necessary or appropriate action to remediate) with legal counsel or other appropriate consultants or experts (collectively, "EXPERTS") of its own selection that are reasonably satisfactory to such Indemnified Party. The Indemnified Party shall have the right, upon written notice delivered but not the obligation, to (i) elect to defend, contest, settle or otherwise protect against such claims with Experts of its own choice, (ii) participate in the defense, contest, settlement or other protection of such claims with Experts of its own choice, and (iii) assert any and all defenses, cross claims or counterclaims it may have; provided, however, that such election, participation and assertion shall be at the Indemnified Party's sole cost and expense, notwithstanding anything in this Agreement to the contrary, unless (x) the Indemnified and Indemnifying Parties have agreed otherwise, (y) representation of both parties by the same Experts would be inappropriate due to actual or potential differing interests between them or (z) the Indemnifying Party within thirty (30) days thereafter, fails to assume the defense of such Third Party Claim, including the employment of counsel take reasonably necessary or appropriate action and employ appropriate Experts that are reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment within a reasonable period of the fees and disbursements of such counsel. If the Indemnifying Party declines or fails to assume the defense of such Third Party Claim within such thirty (30) day period, however, the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claim. In any Third Party Claim or Misclassification Claim with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter and to retain its own counsel at such Party’s own expensetime. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised not be liable for any settlement of the status of any matter the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.
(c) Subject to the provisions contained in Schedule 10.1(a)(iv), no Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder, including, but not limited to, with respect to Indemnified Misclassification Claims, a Claim effected without the its prior written consent of the (which shall not be unreasonably withheld, delayed or conditioned). The Indemnifying Party shall not settle any Claim without the relevant Indemnified Party's prior written consent (which shall not be unreasonably withheld, conditioned or delayed (it being acknowledged that any delayed) unless the settlement which is generally consistent with amounts includes an unconditional general release of prior settlements of Misclassification Claims by the Company or any Company Subsidiary shall be deemed reasonable).
(d) If an Indemnified Party claims a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification Claim, such Indemnified Party from all Liabilities that are the subject matter of the proceeding. The Indemnified Party shall send written notice of such claim cooperate, and shall cause each other Indemnified Party to at all times cooperate, in all reasonable ways with, make (subject to the appropriate Indemnifying Party. Such notice shall specify in assertion of attorney-client and other applicable privileges) its respective relevant files and records available for inspection and copying by, and make its employees available or otherwise render reasonable detail the basis for such claim. As promptly as possible after the Indemnified Party has given such noticeassistance to, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation or otherwise) and, within five (5) Business Days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s)in its defense, such Equity Holder(s) shallcontest, settlement or protection of any Claim subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in immediately available funds an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h).indemnification
Appears in 1 contract
Sources: Stock Purchase and Recapitalization Agreement (Paxar Corp)
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt by an Atlas Indemnified Party or a Titan Indemnified Party (hereinafter collectively referred to as an “Indemnified Party”) of notice from by a third party (including any Governmental Authority) of a threatened or filed complaint any Actions or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) audit with respect to which such Indemnified Party may be entitled to indemnification hereunderreceive payment hereunder for any Atlas Losses or any Titan Losses (as the case may be), such Indemnified Party shall provide prompt written notice will notify Atlas or Representative, as the case may be (in such capacity, Atlas or Representative, is hereinafter referred to Buyer or the Equity Holders, whichever is the appropriate indemnifying Party hereunder (the as an “Indemnifying Party”)) of such Action or audit; provided, however, that the failure to so notify the Indemnifying Party shall will relieve the Indemnifying Party from liability under this Agreement with respect to such claim Action or audit only if, and only to the extent that, the defense of such Actions or audit is prejudiced as a result of the failure to notify the Indemnifying Party results in (i) the forfeiture by the Party. Notwithstanding Representative’s status as an Indemnifying Party of material rights Party, Representative shall have no personal liability hereunder and defenses otherwise available its obligations shall be satisfied only to the Indemnifying Party with respect to such claim or (ii) material prejudice extent of the General Escrow Units then held in escrow pursuant to the Indemnifying Party with respect to such claimEscrow Agreement. The Indemnifying Party shall will have the right, at its sole expense, upon written notice delivered to the Indemnified Party within thirty fifteen (3015) calendar days thereafterafter receiving such notice, to assume the defense of such Third Action with counsel selected by the Indemnifying Party Claim, including the employment of counsel and reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges Party. In the event, however, that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If the Indemnifying Party declines or fails to (i) assume the defense of such Third Party Claim the Action on the terms provided above or (ii) employ counsel reasonably satisfactory to the Indemnified Party, in any case within such thirty fifteen (3015) day period, however, the then such Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, Action and the Indemnifying Party will (subject to the other terms and provisions of this Agreement) pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Action. For avoidance of doubt, the fees and disbursements of counsel of any Atlas Indemnified Party Claimin connection with an Atlas Loss shall be satisfied solely by receiving from the Escrow Agent a portion of the General Escrow Units, with such fees and expenses being converted into a number of General Escrow Units based on the Execution Date Unit Price, in an amount equal to such fees and disbursements. In any Third Party Claim or Misclassification Claim Action with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such actionAction, shall will have the right to participate in such matter and to retain its own counsel at such Party’s own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall will at all times use reasonable efforts to (i) diligently conduct the defense of any Action for which it is maintaining the defense and (ii) keep the Indemnifying Indemnified Party or the Indemnified Indemnifying Party, as the case may be, reasonably apprised of the status of the defense of any matter Action the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matterAction.
(cb) Subject to the provisions contained in Schedule 10.1(a)(iv), no No Indemnified Party may settle or compromise any claim Action or consent to the entry of any judgment with respect to which indemnification is being sought hereunderhereunder without the prior written consent of the Indemnifying Party, includingunless (i) such settlement, but compromise or consent includes an unconditional release of the Indemnifying Party from all liability arising out of such Action (and, where Representative is the Indemnifying Party, an unconditional release of all claims against the Titan Released Parties in respect of all Liability arising out of such Action), (ii) does not limited tocontain any admission or statement of any wrongdoing or liability on behalf of the Indemnifying Party (and where Representative is the Indemnifying Party, the Titan Released Parties) and (iii) does not contain any equitable order, judgment or term that in any manner affects, restrains or interferes with respect to Indemnified Misclassification Claimsthe business of the Indemnifying Party or any of the Indemnifying Party’s affiliates. An Indemnifying Party may not, without the prior written consent of the Indemnifying Indemnified Party, settle or compromise any Action or consent to the entry of any judgment with respect to which indemnification is being sought hereunder unless (i) such settlement, compromise or consent includes an unconditional release of the Indemnified Party which shall from all liability arising out of such Action, (ii) does not be unreasonably withheldcontain any admission or statement of any wrongdoing or liability on behalf of the Indemnified Party and (iii) does not contain any equitable order, conditioned judgment or delayed (it being acknowledged term that in any settlement which is generally consistent manner affects, restrains or interferes with amounts the business of prior settlements of Misclassification Claims by the Company Indemnified Party or any Company Subsidiary shall be deemed reasonable)of the Indemnified Party’s affiliates.
(dc) If A claim for indemnification by an Indemnified Party claims a right to payment pursuant to this Agreement for any matter not involving an Action by a Third Party Claim or a Misclassification Claim, such Indemnified Party shall send third party may be asserted by written notice of such claim to the appropriate Indemnifying PartyParty from whom indemnification is sought. Such notice shall will specify in with reasonable detail specificity the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation or otherwise) and, within five (5) Business Days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in immediately available funds an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h).
Appears in 1 contract
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(bi) Promptly after receipt by an a ▇▇▇▇▇▇▇ Indemnified Party of notice from by a third party of a threatened or filed any complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification hereunderis being sought under this Agreement, such ▇▇▇▇▇▇▇ Indemnified Party shall provide prompt written notice to Buyer notify the Shareholders of such complaint or of the Equity Holderscommencement of such action or proceeding; PROVIDED, whichever is the appropriate indemnifying Party hereunder (the “Indemnifying Party”); provided, howeverHOWEVER, that the failure to so notify the Indemnifying Party Shareholders shall not relieve the Indemnifying Party Shareholders from liability under this Agreement with respect to for such claim only if, claims except and only to the extent that, that such failure to notify the Indemnifying Party Shareholders results in (i) the forfeiture by of, or otherwise prejudices the Indemnifying Party of material Shareholder's ability to establish, rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party Shareholders with respect to such claim. The Indemnifying Party Shareholders shall have the right, upon written notice delivered to the ▇▇▇▇▇▇▇ Indemnified Party within thirty (30) days thereafterParty, to assume the defense of such Third Party Claimaction or proceeding, including the employment of counsel reasonably satisfactory to the ▇▇▇▇▇▇▇ Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counselcounsel as incurred. If the Indemnifying Party declines Shareholders do not elect to assume control of the defense of any such claims, the Shareholders shall be bound by the results otherwise obtained with respect to such claim. In the event, however, that the Shareholders decline or fails fail to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory to such Third Party Claim within ▇▇▇▇▇▇▇ Indemnified Party, in either case in a timely manner, then such thirty (30) day period, however, the ▇▇▇▇▇▇▇ Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if action or proceeding and the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will Shareholders shall pay the reasonable fees and disbursements of such counsel as incurredupon receipt of an invoice; providedPROVIDED, howeverHOWEVER, that the Indemnifying Party will Shareholders shall not be required to pay the fees and disbursements of more than one counsel for all ▇▇▇▇▇▇▇ Indemnified Parties in any jurisdiction in any single Third action or proceeding. However, in the event, that an action or proceeding relating to the ▇▇▇▇▇▇▇ Intellectual Property arises after March 31, 2001 in which the Shareholders decline or fail to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory to such ▇▇▇▇▇▇▇ Indemnified Party Claimin such action or proceeding, in either case in a timely manner, then such ▇▇▇▇▇▇▇ Indemnified Party may employ counsel to represent or defend it, ▇▇▇▇▇▇▇ or the Affiliates in any such action or proceeding relating to the ▇▇▇▇▇▇▇ Intellectual Property and Optio shall pay the fees and disbursements of such counsel if it is determined that there is no liability by Optio, ▇▇▇▇▇▇▇ or the Affiliates to such third party. In any Third Party Claim action or Misclassification Claim proceeding with respect to which indemnification is being sought hereunderunder this Agreement, the ▇▇▇▇▇▇▇ Indemnified Party Parties or the Indemnifying PartyShareholders, whichever is not assuming the defense of such action, shall have the right to participate in such matter litigation and to retain its own counsel at such Party’s party's own expense. The Indemnifying Party ▇▇▇▇▇▇▇ Indemnified Parties or the Indemnified PartyShareholders, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party Shareholders or the ▇▇▇▇▇▇▇ Indemnified PartyParties, as the case may be, reasonably apprised of the status of the defense of any matter claim the defense of which they are maintaining maintaining, and to cooperate in good faith with each other with respect to the defense of any such matteraction.
(cii) Subject Notwithstanding anything herein to the provisions contained in Schedule 10.1(a)(ivcontrary (including responsibility for defense of the claim), no ▇▇▇▇▇▇▇ Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunderfrom the Shareholders under this Agreement, includingunless such settlement, but not limited tocompromise or consent includes an unconditional release of the Shareholders from all liability arising out of such claim, with respect to Indemnified Misclassification Claimsotherwise the prior written consent of the Shareholders must be obtained. The Shareholders shall not, without the prior written consent of Optio, settle or compromise any claim or consent to the Indemnifying Party entry of any judgment with respect to which shall indemnification is being sought under this Agreement unless such settlement, compromise or consent includes an unconditional release of the ▇▇▇▇▇▇▇ Indemnified Parties from all liability arising out of such claim and does not be unreasonably withheldcontain any equitable order, conditioned judgment or delayed (it being acknowledged that term which in any settlement which is generally consistent manner affects, restrains or interferes with amounts the business of prior settlements Optio, any of Misclassification Claims by the Company ▇▇▇▇▇▇▇ Indemnified Parties or any Company Subsidiary shall be deemed reasonable)of their respective affiliates.
(diii) If an In the event that a ▇▇▇▇▇▇▇ Indemnified Party claims does claim a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification ClaimAgreement, such ▇▇▇▇▇▇▇ Indemnified Party shall send written notice of such claim to the appropriate Indemnifying PartyShareholders. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the ▇▇▇▇▇▇▇ Indemnified Party has given such notice, such ▇▇▇▇▇▇▇ Indemnified Party and the appropriate Indemnifying Party Shareholders shall establish the merits and amount of such claim (by mutual agreementagreement or arbitration as set forth in Section 8.8 hereof). However, litigation notwithstanding any other provision of this Agreement, Optio shall not be entitled to indemnification hereunder and may not make any claim for a Loss unless and until one or otherwise) andmore claims have been made according to this Article VI and the Translink Agreement, within five and said claims are in excess of $100,000 in the aggregate (5) Business Days the "BASKET AMOUNT"), in which case Optio shall be entitled to recover all Losses in excess of the final determination of Basket Amount. Notwithstanding the merits and amount of such claimforegoing, the Basket Amount shall not apply with respect to (i) the Purchase Price adjustment for Net Book Value, if the Indemnifying Party is an Equity Holder(sany, to be made in accordance with Section 4.1(a), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in immediately available funds an amount equal to such claim as determined hereunder, and (ii) if any breaches of representations, warranties or covenants contained in Sections 2.3 (Capitalization) or 2.19 (Brokers) or (iii) legal and accounting fees incurred by ▇▇▇▇▇▇▇ in connection with this Agreement or the Indemnifying Party is transactions contemplated hereby remaining unpaid after the BuyerClosing.
(iv) At Optio's option, it may setoff against the Buyer shall pay outstanding principal and interest due and payable to (Athe Shareholders under the Promissory Note(s) the Sellers’ Representative (on behalf payment of the Stockholders and the Warrant Holder) an amount equal any claims due to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h)Optio under this Article VI.
Appears in 1 contract
Indemnification Procedure. All claims for indemnification under Sections 10.1 and 10.2 hereof shall be asserted and resolved as follows:
(a) The Buyer shall have In the right event that any claim or demand for which an Indemnifying Party would be liable to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt by an Indemnified Party of notice from hereunder is asserted against an Indemnified Party by a third party party, the Indemnified Party shall notify the Indemnifying Party of a threatened such claim or filed complaint or the threatened or actual commencement of any auditdemand with reasonable promptness (following, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which any such claim or demand asserted against a Buyer Indemnified Party, (i) receipt thereof by senior management of the Indemnified Party may be entitled to indemnification hereunderand K-Tron or (ii) if no Seller is employed as the President, Chief Executive Officer or Chief Financial Officer of the Company at the time of such claim or demand, receipt thereof by senior management of the Indemnified Party shall provide prompt written notice to Buyer Party), specifying the nature of such claim or demand and the amount or the Equity Holders, whichever is estimated amount thereof to the appropriate indemnifying Party hereunder extent then feasible (which estimate shall not be conclusive of the final amount of such claim or demand) (the “Indemnifying Party”"Claim Notice"); provided, however, provided that the failure to so notify the Indemnifying Party shall relieve not limit the rights of the Indemnified Party except to the extent that the Indemnifying Party has been materially prejudiced thereby. The Indemnifying Party shall have 30 days from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure receipt of the Claim Notice (the "Notice Period") to notify the Indemnifying Indemnified Party results in (i) the forfeiture by whether or not the Indemnifying Party of material rights and defenses otherwise available disputes the Indemnifying Party's liability to the Indemnifying Indemnified Party hereunder with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty (30) days thereafter, to assume the defense of such Third Party Claim, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If the Indemnifying Party declines or fails to assume the defense of such Third Party Claim within such thirty (30) day period, however, the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claim. In any Third Party Claim or Misclassification Claim with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter and to retain its own counsel at such Party’s own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of any matter the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.
(c) Subject to the provisions contained in Schedule 10.1(a)(iv), no Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder, including, but not limited to, with respect to Indemnified Misclassification Claims, without the prior written consent of the Indemnifying Party which shall not be unreasonably withheld, conditioned or delayed (it being acknowledged that any settlement which is generally consistent with amounts of prior settlements of Misclassification Claims by the Company or any Company Subsidiary shall be deemed reasonable).
(d) If an Indemnified Party claims a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification Claim, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation or otherwise) and, within five (5) Business Days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in immediately available funds an amount equal to such claim as determined hereunder, demand and (ii) if the Indemnifying Party does not dispute such liability, whether or not the Indemnifying Party desires, at the sole cost and expense of the Indemnifying Party, to defend against such claim or demand, provided that the Indemnified Party is hereby authorized (but not obligated) prior to and during the Notice Period to file any motion, answer or other pleading which the Indemnified Party shall deem necessary or appropriate to protect the Indemnified Party's interests, provided that no such motion, answer or other pleading shall admit to any allegation for which indemnity is sought in such a way that materially prejudices the Indemnifying Party's right to defend against a claim or demand as provided hereunder. In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that the Indemnifying Party does not dispute the Indemnifying Party's obligation to indemnify hereunder and desires to defend the Indemnified Party against such claim or demand and except as hereinafter provided, the Indemnifying Party shall have the right to defend by appropriate proceedings, which proceedings shall be settled or prosecuted by the Indemnifying Party to a final conclusion within a reasonable period of time under the circumstances. If the Indemnified Party desires to participate in, but not control, any such defense or settlement the Indemnified Party may do so at the Indemnified Party's sole cost and expense. If the Indemnifying Party elects not to defend the Indemnified Party against such claim or demand, whether by not giving the Indemnified Party timely notice as provided above or otherwise, then the Indemnified Party, without waiving any rights against the Indemnifying Party, may reasonably settle or defend against any such claim in the Indemnified Party's reasonable discretion and, if it is ultimately determined that the Indemnifying Party is responsible therefor under this Section 10 then the Indemnified Party shall be entitled to recover from the Indemnifying Party the amount of any settlement or judgment and all indemnifiable costs and expenses of the Indemnified Party with respect thereto, including interest as provided in Section 10.6 hereof.
(b) The Indemnifying Party shall not settle any Claim without the consent of the Indemnified Party if: (i) the amount of any such settlement exceeds the Cap, or (ii) the settlement will have a material adverse effect on the business, operations, assets, properties, prospects or condition (financial or otherwise) of the Indemnified Party, the Company or its Subsidiary.
(c) In the event the Indemnified Party should have a claim against the Indemnifying Party hereunder (i) which, with respect to any such claim by a Buyer Indemnified Party, is known to the senior management of K-Tron, and (ii) which in any event does not involve a claim or demand being asserted against or sought to be collected by a third party, the Indemnified Party shall with reasonable promptness send a Claim Notice with respect to such claim to the Indemnifying Party. If the Indemnifying Party does not notify the Indemnified Party within the Notice Period that the Indemnifying Party disputes such claim, the amount of such claim shall be conclusively deemed a liability of the Indemnifying Party hereunder.
(d) The procedures set forth in Sections 10.7(a) and (c) hereof shall not apply to claims or demands of a Buyer Indemnified Party which, in the reasonable opinion of the Buyer, would be covered by the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h)Deductible.
Appears in 1 contract
Sources: Stock Purchase Agreement (K Tron International Inc)
Indemnification Procedure. (a) The Buyer All claims for indemnification under the provisions of Section 9.6 shall have the right to control be asserted and defend, with counsel of its choosing reasonably acceptable resolved pursuant to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations provisions of this Section 9.8. Any person or reviews entity claiming indemnification hereunder is hereinafter referred to as the "Indemnified Party" and any person or entity against whom such claims are asserted hereunder is hereinafter referred to as the "Indemnifying Party." In the event that relate any Damages are asserted against or sought to Indemnified Misclassification Claims.
(b) Promptly after receipt by be collected from an Indemnified Party of notice from by a third party of a threatened or filed complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification hereunderparty, such Indemnified Party shall shall, with reasonable promptness, provide prompt written notice to Buyer or the Equity Holders, whichever is the appropriate indemnifying Party hereunder (the “Indemnifying Party”); provided, however, that the failure to so notify the Indemnifying Party shall relieve a written notice of claim specifying, in reasonable detail, the Indemnifying Party from liability under this Agreement specific nature of and specific basis of the Damages and the estimated amount of such Damages and including a copy of all papers served with respect to such claim only if(if any) and the basis of such claim for indemnification under the provisions of Section 9.6 (each a "Claim Notice"). Notwithstanding the preceding sentence, and only failure of an Indemnified Party to give notice hereunder shall not release the Indemnifying Party from its obligations under the provisions of Section 9.6, except to the extent that, the Indemnifying Party is actually prejudiced by such failure to notify give notice; provided that, the Indemnifying Party results in (i) shall not be obligated to defend, indemnify or otherwise hold harmless an Indemnified Party with respect to a third party claim until a Claim Notice meeting the forfeiture by the Indemnifying Party of material rights and defenses otherwise available foregoing requirements is furnished to the Indemnifying Party with respect to such claim or (ii) material prejudice to by the Indemnifying Party with respect to such claimparty seeking indemnity hereunder. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty (30) days thereafter, from the personal delivery or receipt of any Claim Notice (the "Notice Period") in which to assume notify the defense Indemnified Party whether or not it disputes the liability of such Third the Indemnifying Party Claim, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory hereunder with respect to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counselDamages. If the Indemnifying Party declines or fails to assume the defense of such Third Party Claim within such thirty (30) day period, however, so notify the Indemnified Party may employ during the Notice Period, the Indemnifying Party shall be deemed to have elected to dispute such liability. The Indemnified Party shall have the duty to defend such third party claim by all appropriate proceedings, and with counsel of its own choosing, which proceedings shall be promptly settled or prosecuted to represent or defend it in a final conclusion. If the Indemnifying Party desires to participate in, but not control, any such Third Party Claim anddefense or settlement, if it may do so at its sole cost and expense. If requested by the Indemnified Party, the Indemnifying Party agrees that such Third Party Claim is a matter to cooperate with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss and its counsel in question, the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurred; provided, however, contesting any Damages that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claim. In any Third Party Claim or Misclassification Claim with respect to which indemnification is being sought hereunder, the Indemnified Party elects to contest. No claim may be settled or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter and to retain its own counsel at such Party’s own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of any matter the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.
(c) Subject to the provisions contained in Schedule 10.1(a)(iv), no Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder, including, but not limited to, with respect to Indemnified Misclassification Claims, otherwise compromised without the prior written consent of the Indemnifying Party which shall not be unreasonably withheld, conditioned or delayed (it being acknowledged that any settlement which is generally consistent with amounts of prior settlements of Misclassification Claims by the Company or any Company Subsidiary shall be deemed reasonable).
(d) If an Indemnified Party claims a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification Claim, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail If the basis for such claim. As promptly as possible after Indemnifying Party disputes whether a third party claim is an indemnified claim under the provisions of Section 9.6, the determination of whether the Indemnified Party has given such notice, such Indemnified Party and is entitled to indemnification under the appropriate Indemnifying Party provisions of Section 9.6 shall establish the merits and amount of such claim (by mutual agreement, litigation or otherwise) and, within five (5) Business Days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject be resolved pursuant to Sections 10.5 and 10.6 or, arbitration as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer provided in immediately available funds an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h)10.16.
Appears in 1 contract
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt by an a Parent Indemnified Party or a Stockholder Indemnified Party (hereinafter collectively referred to as an “Indemnified Party”) of notice from by a third party (including any Governmental Entity) of a threatened or filed complaint any Actions or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) audit with respect to which such Indemnified Party may be entitled to indemnification hereunderreceive payment hereunder for any Parent Losses or any Stockholder Losses (as the case may be), such Indemnified Party shall provide prompt written notice to Buyer will notify Parent or the Equity HoldersStockholder Representative, whichever is as the appropriate indemnifying Party hereunder case may be (in such capacity, Parent or the Principal Stockholders are hereinafter referred to as an “Indemnifying Party”), of such Action or audit; provided, however, that the failure to so notify the Indemnifying Party shall will relieve the Indemnifying Party from liability under this Agreement with respect to such claim Action only if, and only to the extent that, such failure to notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim Action. Unless (i) the Indemnifying Party is also a party to such Action and the Indemnified Party’s counsel shall have advised the Indemnified Party that a conflict of interests exists that would make joint representation inappropriate or (ii) material prejudice to the Indemnifying Party with respect fails to provide reasonable assurance to the Indemnified Party of its financial capacity to defend such claim. The Action, the Indemnifying Party shall will have the right, at its sole expense, upon written notice delivered to the Indemnified Party within thirty (30) ten calendar days thereafterafter receiving such notice, to assume the defense of such Third Action with counsel selected by the Indemnifying Party Claimand reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party shall have acknowledged in writing to the Indemnified Party its unqualified obligation to fully indemnify the Indemnified Party pursuant to this Article IX. In the event, including however, that the employment Indemnifying Party (A) declines or fails to (1) assume the defense of the Action on the terms provided above, (2) provide reasonable assurance to the Indemnified Party of its financial capacity to defend such Action and provide indemnification with respect to such Action or (3) employ counsel reasonably satisfactory to the Indemnified Party, in any case within such ten-day period, or (B) the Indemnifying Party (is also a party to such Action and Buyer hereby acknowledges that King & Spalding LLP the Indemnified Party’s counsel shall be satisfactory to have advised the Indemnified Party if Buyer is the Indemnified Party) and the payment that a conflict of the fees and disbursements of interests exists that would make joint representation inappropriate, then such counsel. If the Indemnifying Party declines or fails to assume the defense of such Third Party Claim within such thirty (30) day period, however, the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, Action and the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party ClaimAction. In any Third Party Claim or Misclassification Claim Action with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such actionAction, shall will have the right to participate in such matter and to retain its own counsel at such Party’s own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall will at all times use reasonable efforts Reasonable Efforts to keep the Indemnifying Indemnified Party or the Indemnified Indemnifying Party, as the case may be, reasonably apprised of the status of the defense of any matter Action the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matterAction.
(cb) Subject to the provisions contained in Schedule 10.1(a)(iv), no No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunderhereunder without the prior written consent of the Indemnifying Party, includingunless (i) the Indemnifying Party fails to assume and maintain the defense of such claim pursuant to Section 9.3(a) or (ii) such settlement, but not limited to, with respect to Indemnified Misclassification Claimscompromise or consent includes an unconditional release of the Indemnifying Party from all liability arising out of such claim. An Indemnifying Party may not, without the prior written consent of the Indemnifying Indemnified Party, settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder unless (i) such settlement, compromise or consent includes an unconditional release of the Indemnified Party from all liability arising out of such claim, (ii) does not contain any admission or statement suggesting any wrongdoing or liability on behalf of the Indemnified Party and (iii) does not contain any equitable order, judgment or term which shall not be unreasonably withheldin any manner affects, conditioned restrains or delayed (it being acknowledged that any settlement which is generally consistent interferes with amounts the business of prior settlements of Misclassification Claims by the Company Indemnified Party or any Company Subsidiary shall be deemed reasonable)of the Indemnified Party’s Affiliates.
(dc) If A claim for indemnification by an Indemnified Party claims a right to payment pursuant to this Agreement for any matter not involving an Action by a Third Party Claim or a Misclassification Claim, such Indemnified Party shall send third party may be asserted by written notice of such claim to the appropriate Indemnifying PartyParty from whom indemnification is sought. Such notice shall will specify in with reasonable detail specificity the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall will establish the merits and amount of such claim (by mutual agreement, litigation litigation, arbitration or otherwise) and, within five (5) Business Days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, will pay to Buyer in the Indemnified Party immediately available funds (or, if the Indemnified Party is a Parent Indemnified Party, in accordance with this Article IX) in an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h).
Appears in 1 contract
Indemnification Procedure. (a) The Buyer indemnified party shall have promptly notify the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt by an Indemnified Party of notice from a third indemnifying party of a threatened or filed complaint or the threatened or actual commencement in writing of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) Action and cooperate with respect to which such Indemnified Party may be entitled to indemnification hereunder, such Indemnified Party shall provide prompt written notice to Buyer or the Equity Holders, whichever is indemnifying party at the appropriate indemnifying Party hereunder (the “Indemnifying Party”); provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, party's sole cost and only to the extent that, such failure to notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty (30) days thereafter, to assume the defense of such Third Party Claim, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If the Indemnifying Party declines or fails to assume the defense of such Third Party Claim within such thirty (30) day period, however, the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claim. In any Third Party Claim or Misclassification Claim with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter and to retain its own counsel at such Party’s own expense. The Indemnifying Party or indemnifying party shall not settle any Action in a manner that adversely affects the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised rights of the status of any matter the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.
(c) Subject to the provisions contained in Schedule 10.1(a)(iv), no Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder, including, but not limited to, with respect to Indemnified Misclassification Claims, indemnified party without the indemnified party's prior written consent of the Indemnifying Party consent, which shall not be unreasonably withheldwithheld or delayed. The indemnified party may retain counsel of its choice to observe the proceedings at its own cost and expense. LIMITATIONS OF LIABILITY. No Consequential or Indirect Damages. NEITHER PARTY SHALL BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR INDIRECT, conditioned or delayed INCIDENTAL, CONSEQUENTIAL, LIQUIDATED, SPECIAL OR EXEMPLARY DAMAGES OR PENALTIES, INCLUDING WITHOUT LIMITATION, LOSSES OF BUSINESS, REVENUE OR ANTICIPATED PROFITS, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Cap on Monetary Damages. EACH PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED AN AMOUNT EQUAL TO THE AGGREGATE AMOUNTS PAID OR PAYABLE TO LICENSOR IN THE TWELVE (it being acknowledged that any settlement which is generally consistent with amounts of prior settlements of Misclassification Claims by the Company or any Company Subsidiary shall be deemed reasonable)12) MONTHS PRECEDING THE COMMENCEMENT OF THE CLAIM.
(d) If an Indemnified Party claims a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification Claim, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation or otherwise) and, within five (5) Business Days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in immediately available funds an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h).
Appears in 1 contract
Sources: Website Content License Agreement (Empirical Ventures, Inc.)
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt by an RSL Indemnified Party or a Sprint Indemnified Party (hereinafter collectively referred to as an "Indemnified Party") of notice from by a third party of a threatened or filed any complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party indemnification is being or may be entitled to indemnification sought hereunder, such Indemnified Party shall provide prompt written notice to Buyer notify RSL or the Equity HoldersSprint, whichever is the appropriate indemnifying Party hereunder (the “"Indemnifying Party”"), of such complaint or of the commencement of such action or proceeding; provided, however, that the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from liability for such claim arising otherwise than under this Agreement and such failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability which the Indemnifying Party may have hereunder with respect to such claim if, but only if, and only to the extent that, such failure to notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty (30) days thereafterParty, to assume the defense of such Third Party Claimaction or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If In the event, however, that the Indemnifying Party declines or fails to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory to the Indemnified Party, in either case in a timely manner, then such Third Party Claim within such thirty (30) day period, however, the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if action or proceeding and the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will shall not be required to pay the reasonable fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claimaction or proceeding. In any Third Party Claim action or Misclassification Claim proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter litigation and to retain its own counsel at such Party’s 's own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any matter action the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matteraction.
(cb) Subject to the provisions contained in Schedule 10.1(a)(iv), no No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunderhereunder without the prior written consent of the Indemnifying Party, includingunless such settlement, but not limited to, with respect to Indemnified Misclassification Claimscompromise or consent includes an unconditional release of the Indemnifying Party from all liability arising out of such claim. An Indemnifying Party may not, without the prior written consent of the Indemnifying Indemnified Party, settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder unless such settlement, compromise or consent includes an unconditional release of the Indemnified Party from all liability arising out of such claim and does not contain any equitable order, judgment or term which shall not be unreasonably withheldin any manner affects, conditioned restrains or delayed (it being acknowledged that any settlement which is generally consistent interferes with amounts the business of prior settlements of Misclassification Claims by the Company Indemnified Party or any Company Subsidiary shall be deemed reasonable)of the Indemnified Party's respective affiliates.
(dc) If In the event an Indemnified Party claims shall claim a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification ClaimAgreement, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation litigation, arbitration or otherwise) and, within five (5) Business Days business days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject shall deliver to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in Indemnified Party immediately available funds in an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h).
Appears in 1 contract
Sources: Transition Services Agreement (RSL Communications PLC)
Indemnification Procedure. Any party (athe "Indemnified Party") The Buyer that may be entitled to indemnification under Section 7, 9.6 or 10(a) shall have the right to control and defend, with counsel of its choosing reasonably acceptable give notice to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate party obligated to Indemnified Misclassification Claims.
indemnify (b"Indemnifying Party") Promptly reasonably promptly after receipt the assertion by an Indemnified Party of notice from a third party of a threatened or filed complaint or claim against the threatened or actual commencement Indemnified Party in respect of which the Indemnified Party intends to seek indemnification, but the delay in notifying the Indemnifying Party shall not relieve it of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third obligations hereunder except to the extent that such delay adversely affects the ability of the Indemnifying Party Claim”) with respect to which conduct the defense of such claim. The Indemnified Party may shall be entitled to participate in such defense, but shall not be entitled to indemnification hereunder, with respect to the expenses of such Indemnified Party shall provide prompt written notice to Buyer or defense incurred after the Equity Holders, whichever is the appropriate indemnifying Party hereunder (the “Indemnifying Party”); provided, however, that the failure to so notify date the Indemnifying Party shall relieve have assumed the defense of the claim with counsel satisfactory to the Indemnified Party. The Indemnifying Party may not settle any claim without the consent of the Indemnified Party (which consent shall not be unreasonably withheld). If notice is given to an Indemnifying Party of the assertion by a third party of a claim against the Indemnified Party and the Indemnifying Party from liability under this Agreement with respect to such claim only ifdoes not, and only within ten (10) days after the Indemnified Party's notice is given, give notice to the extent thatIndemnified Party of its election to assume the defense thereof, such failure to notify the Indemnifying Party results may, at the Indemnifying Party's expense, select counsel to defend such claim, and defend such claim in (i) the forfeiture by such manner as it may deem appropriate, and the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party shall be bound by any determination made with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty (30) days thereafter, to assume the defense of such Third Party Claim, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is any compromise or settlement thereof effected by the Indemnified Party) and . Notwithstanding the payment of the fees and disbursements of such counsel. If the Indemnifying Party declines or fails to assume the defense of such Third Party Claim within such thirty (30) day periodforegoing, however, the if an Indemnified Party may employ counsel to represent or defend it determines in any such Third Party Claim and, if the Indemnifying Party agrees good faith that such Third Party Claim there is a matter with respect to which the reasonable probability that a claim may adversely affect it other than as a result of monetary damages, such Indemnified Party is entitled may, by notice to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claim. In any Third Party Claim or Misclassification Claim with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming assume the defense of such action, shall have the exclusive right to participate in defend, compromise or settle such matter and to retain its own counsel at such Party’s own expense. The Indemnifying Party or the Indemnified Partyclaim, as the case may be, shall at all times use reasonable efforts to keep but the Indemnifying Party shall not be bound by any determination of a claim so defended or the Indemnified Party, as the case may be, reasonably apprised of the status of any matter the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.
compromise or settlement thereof effected without its consent (c) Subject to the provisions contained in Schedule 10.1(a)(iv), no Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder, including, but not limited to, with respect to Indemnified Misclassification Claims, without the prior written consent of the Indemnifying Party which shall not be unreasonably withheld, conditioned or delayed (it being acknowledged that any settlement which is generally consistent with amounts of prior settlements of Misclassification Claims by the Company or any Company Subsidiary shall be deemed reasonable).
(d) If an Indemnified Party claims a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification Claim, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation or otherwise) and, within five (5) Business Days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in immediately available funds an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h).
Appears in 1 contract
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt by an a Buyer Indemnified Party or a ChoicePoint Indemnified Party (hereinafter referred to as, collectively, an "INDEMNIFIED PARTY") of notice from by a third party of a threatened or filed complaint any claim or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification hereunderreceive payment from any other party for any Losses (ignoring, for this purpose, the Threshold Amount (as hereinafter defined)), such Indemnified Party shall provide prompt written notice to shall, within ten (10) days, notify Buyer or the Equity HoldersChoicePoint, whichever is as the appropriate indemnifying Party hereunder party or representative thereof (the “Indemnifying Party”"INDEMNIFYING PARTY"), of such claim or of the commencement of such action or proceeding; providedPROVIDED, howeverHOWEVER, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material any rights and or defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty twenty (3020) days thereafter, to assume the responsibility and defense of such Third Party Claimaction or proceeding, including the employment engagement of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If In the event, however, that the Indemnifying Party declines or fails to assume the responsibility and defense of such Third Party Claim the action or proceeding and to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such thirty (30) 20-day period, however, the then such Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim andaction or proceeding, if and the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will shall pay the reasonable fees and disbursements of such counsel as incurred; provided, howeverHOWEVER, that the Indemnifying Party will shall not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claimaction or proceeding. In any Third Party Claim action or Misclassification Claim proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter litigation and to retain its own counsel at such Party’s party's own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any matter action, the defense of which they are maintaining it is maintaining, and to cooperate in good faith with each other with respect to the defense of any such matteraction.
(cb) Subject to the provisions contained in Schedule 10.1(a)(iv), no No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder without the prior written consent of the Indemnifying Party, unless such settlement, compromise, or consent includes an unconditional release of the Indemnifying Party from all liability arising out of such claim and is not conditioned upon the payment of any amount by the Indemnifying Party (or for which indemnification may be sought hereunder), includingor does not contain or result in any restriction, but not limited tointerference, with respect or condition that would apply to Indemnified Misclassification Claimssuch Indemnifying Party or its Affiliates or to the conduct of any of their respective businesses (whether through injunctive or equitable relief or otherwise). An Indemnifying Party may not, without the prior written consent of the Indemnified Party, settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder unless (i) the Indemnifying Party which shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness thereof; (ii) the terms or effect of the settlement shall not be unreasonably withheld, conditioned or delayed (it being acknowledged that encumber any settlement which is generally consistent with amounts of prior settlements the assets of Misclassification Claims by the Company any Indemnified Party or any Company Subsidiary Affiliate thereof, or contain or result in any restriction, interference or condition that would apply to such Indemnified Party or its Affiliates or to the conduct of any of their respective businesses; and (iii) the Indemnifying Party shall be deemed reasonable)obtain, as a condition of such settlement, a complete unconditional release of each Indemnified Party.
(dc) If In the event an Indemnified Party claims shall claim a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification ClaimAgreement, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation agreement or otherwisein accordance with Section 10.8 hereof) and, within five (5) Business Days business days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in the Indemnified Party immediately available funds in an amount amount, if any, equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h).
Appears in 1 contract
Sources: Stock Purchase Agreement (GlobalOptions Group, Inc.)
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after following receipt by an Indemnified Party of notice from by a third party (including any Governmental Entity) of a threatened or filed any complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification hereunderreceive payment from the other Party for any Purchaser Loss or any Shareholder Loss (as the case may be) in accordance with this Article X, such Indemnified Party shall provide prompt written notice to Buyer notify the Purchaser or the Equity HoldersShareholder Representative, whichever is as the appropriate indemnifying Party hereunder case may be (the “Indemnifying Party”), promptly following the Indemnified Party’s receipt of such complaint or of notice of the commencement of such audit, investigation, action or proceeding; provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement hereunder with respect to such claim only if, and only to the extent that, such failure to so notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty twenty (3020) days thereafterthereafter assuming full responsibility for any Purchaser Losses or Shareholder Losses (as the case may be) (subject to any limitations set forth in this Article X) resulting from such audit, investigation, action or proceeding, to assume the defense of such Third Party Claimaudit, investigation, action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel; provided, however, that an Indemnifying Party will not be entitled to assume the defense of any audit, investigation, action or proceeding if (i) such claim, based on the remedy being sought, could result in criminal liability of, or equitable remedies against, the Indemnified Party; or (ii) the Indemnified Party reasonably believes that the interests of the Indemnifying Party and the Indemnified Party with respect to such claim are in irreconcilable conflict with one another, and as a result, the Indemnifying Party could not adequately represent the interests of the Indemnified Party in such claim. If In the event, however, that the Indemnifying Party declines or fails to assume the defense of such Third Party Claim the audit, investigation, action or proceeding on the terms provided above or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such thirty twenty (3020) day period, however, the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is not entitled to receive payment from assume the defense of the audit, investigation, action or proceeding in accordance with the preceding sentence, then the Indemnifying Party for the Loss in question, the Indemnifying Party will shall pay the reasonable fees and disbursements of such counsel for the Indemnified Party as incurred; provided, however, that the Indemnifying Party will shall not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claimaudit, investigation, action or proceeding. In any Third Party Claim audit, investigation, action or Misclassification Claim with respect to proceeding for which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter and to retain its own counsel at such Party’s own expense. The Indemnifying Party or the Indemnified Party, Party (as the case may be, ) shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, Party (as the case may be, ) reasonably apprised of the status of the defense of any matter the defense of which they are it is maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.
(cb) Subject to the provisions contained in Schedule 10.1(a)(iv), no No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunderhereunder without the prior written consent of the Indemnifying Party, includingunless (i) the Indemnifying Party fails to assume and maintain the defense of such claim pursuant to Section 10.3(a) or (ii) such settlement, but not limited tocompromise or consent includes an unconditional release of the Indemnifying Party and its officers, with respect to Indemnified Misclassification Claimsdirectors, employees and Affiliates from all liability arising out of such claim. An Indemnifying Party may not, without the prior written consent of the Indemnifying Indemnified Party, settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder unless (x) such settlement, compromise or consent includes an unconditional release of the Indemnified Party which shall and its officers, directors, employees and Affiliates from all liability arising out of such claim, (y) does not be unreasonably withheldcontain any admission or statement suggesting any wrongdoing or liability on behalf of the Indemnified Party and (z) does not contain any equitable order, conditioned judgment or delayed (it being acknowledged term that in any settlement which is generally consistent manner affects, restrains or interferes with amounts the business of prior settlements of Misclassification Claims by the Company Indemnified Party or any Company Subsidiary shall be deemed reasonable)of the Indemnified Party’s Affiliates.
(dc) If In the event an Indemnified Party claims a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification Claimhereto, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As The failure by any Indemnified Party so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability that it may have to such Indemnified Party with respect to any claim made pursuant to this Section 10.3(c), it being understood that notices for claims in respect of a breach of a representation or warranty must be delivered prior to the expiration of the survival period for such representation or warranty under Section 10.4. In the event the Indemnifying Party disputes its liability with respect to such claim, as promptly as possible after the Indemnified Party has given such noticepossible, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation litigation, arbitration or otherwise) and, within five (5) Business Days of following the final determination of the merits and amount amount, if any, of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer the Indemnified Party in immediately available funds an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h).
Appears in 1 contract
Indemnification Procedure. (a) The Buyer Each Indemnified Party shall have the right to control and defend, with counsel of its choosing reasonably acceptable give notice to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly Indemnifying Party promptly after receipt by an such Indemnified Party of notice from a third party of a threatened or filed complaint or the threatened or has actual commencement knowledge of any auditclaim as to which indemnity may be sought, investigationand shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom, action or proceeding other than a Misclassification Claim (a “Third provided the Indemnifying Party Claim”) acknowledges its obligations to indemnify the Indemnified Party with respect to which the claim and provided further that counsel for the Indemnifying Party, who shall conduct the defense of such claim or litigation, shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld), and the Indemnified Party may be entitled to indemnification hereunderparticipate in such defense at such party's expense, such and provided further that the failure of any Indemnified Party to give notice as provided herein shall provide prompt written notice not relieve the Indemnifying Party of its obligations under this Section 3 except to Buyer or the Equity Holders, whichever is the appropriate indemnifying Party hereunder (the “Indemnifying Party”); provided, however, extent that the failure to so notify give such notice is materially prejudicial to an Indemnifying Party's ability to defend such action and provided further, that the Indemnifying Party shall relieve not assume the defense for matters as to which there is a conflict of interest or the Indemnified Party and the Indemnifying Party from liability under this Agreement with respect to such claim only ifcan reasonably argue separate and different defenses; however, and only to the extent that, such failure to notify the Indemnifying Party results shall still bear the expense of the Indemnified Party's defense. No Indemnifying Party, in (i) the forfeiture defense of any such claim or litigation, shall, except with the consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the Indemnifying claimant or plaintiff to such Indemnified Party of material rights and defenses otherwise available to the Indemnifying Party with a release from all liability in respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty (30) days thereafter, to assume the defense of such Third Party Claim, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsellitigation. If the Indemnifying Party declines or fails to does not assume the defense of such Third Party Claim within such thirty (30) day period, howeverany claim or proceeding resulting therefrom, the Indemnified Party may employ counsel to represent defend against such claim or defend it in any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which proceeding as the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss may deem appropriate and may settle such claim or proceeding in question, the Indemnifying Party will pay the reasonable fees and disbursements of such counsel manner as incurred; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claim. In any Third Party Claim or Misclassification Claim with respect to which indemnification is being sought hereunder, the Indemnified Party or may deem appropriate with the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter and to retain its own counsel at such Party’s own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of any matter the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.
(c) Subject to the provisions contained in Schedule 10.1(a)(iv), no Indemnified Party may settle or compromise any claim or 's consent to the entry of any judgment with respect to which indemnification is being sought hereunder, including, but not limited to, with respect to Indemnified Misclassification Claims, without the prior written consent of the Indemnifying Party which shall not be unreasonably withheld, conditioned or delayed (it being acknowledged that any settlement which is generally consistent with amounts of prior settlements of Misclassification Claims by the Company or any Company Subsidiary shall be deemed reasonable).
(d) If an Indemnified Party claims a all without prejudice to its right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification Claim, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation or otherwise) and, within five (5) Business Days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in immediately available funds an amount equal to such claim as determined indemnification hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h).
Appears in 1 contract
Sources: Registration Rights Agreement (Psychiatric Solutions Inc)
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations If any Party hereto discovers or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt by an Indemnified Party of notice from a third party otherwise become aware of a threatened or filed complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) claim with respect to which such Indemnified Party a claim for indemnification may be entitled made pursuant to indemnification hereunderSections 4.1.1 or 4.1.2 of this Agreement (including any third party claim) (the "Indemnified Party"), such Indemnified Party shall provide prompt give written notice to Buyer or the Equity Holders, whichever is the appropriate indemnifying other Party hereunder (the “"Indemnifying Party”"), specifying such claim; provided, however, that the failure of any Indemnified Party to so notify give notice as provided herein shall not relieve the Indemnifying Party of any obligations hereunder to the extent the Indemnifying Party is not Materially prejudiced thereby. Further, promptly after receipt by an Indemnified Party hereunder of written notice of the commencement of any action or proceeding with respect to which a claim for indemnification may be made pursuant to this Section 4, such Indemnified Party shall, if a claim in respect thereof is to be made against any Indemnifying Party, give written notice to the latter of the commencement of such action; provided, however, that the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of any obligations hereunder to the extent the Indemnifying Party is not Materially prejudiced thereby. In case any such action is brought against an Indemnified Party, the Indemnifying Party shall relieve assume the defense thereof to the extent that it may wish, with counsel reasonably satisfactory to such Indemnified Party, and after such notice from the Indemnifying Party from liability under this Agreement with respect to such claim only ifIndemnified Party of its assumption of the defense thereof, and only to the extent that, such failure to notify the Indemnifying Party results shall not be liable to such Indemnified Party for any legal or other expenses subsequently incurred by the latter in (i) connection with the forfeiture by defense thereof unless the Indemnifying Party has failed to assume the defense of material rights such claim and defenses otherwise available to employ counsel reasonably satisfactory to such Indemnified Party. An Indemnifying Party who does not assume the defense of a claim shall not be liable for the fees and expenses of more than one counsel in any single jurisdiction for all parties indemnified by such Indemnifying Party with respect to such claim or (ii) material prejudice with respect to claims separate but similar or related in the same jurisdiction arising out of the same general allegations. Notwithstanding any of the foregoing to the contrary, the Indemnified Party will be entitled to select its own counsel and assume the defense of any action brought against it if the Indemnifying Party fails to select counsel reasonably satisfactory to the Indemnified Party, the expenses of such defense to be paid by the Indemnifying Party. No Indemnifying Party shall consent to entry of any judgment or enter into any settlement with respect to a claim without the consent of the Indemnified Party, which consent shall not be unreasonably withheld, or unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability with respect to such claim. The Indemnifying No Indemnified Party shall have the right, upon written notice delivered consent to the Indemnified Party within thirty (30) days thereafter, to assume the defense entry of such Third Party Claim, including the employment any judgment or enter into any settlement of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If the Indemnifying Party declines or fails to assume the defense of such Third Party Claim within such thirty (30) day period, however, the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claim. In any Third Party Claim or Misclassification Claim with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter and to retain its own counsel at such Party’s own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of any matter the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.
(c) Subject to the provisions contained in Schedule 10.1(a)(iv), no Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder, including, but not limited to, with respect to Indemnified Misclassification Claimshas been assumed by an Indemnifying Party, without the prior written consent of the such Indemnifying Party Party, which consent shall not be unreasonably withheld, conditioned withheld or delayed (it being acknowledged that any settlement which is generally consistent with amounts delayed. All costs and expenses to be paid by an Indemnifying Party on behalf of prior settlements of Misclassification Claims by the Company or any Company Subsidiary shall be deemed reasonable).
(d) If an Indemnified Party claims shall be paid on a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification Claim, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the current basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation or otherwise) and, within five (5) Business Days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in immediately available funds an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h)incurred.
Appears in 1 contract
Sources: Asset Purchase Agreement (U S Industrial Services Inc)
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt by an Indemnified Party of notice from by a third party of a threatened or filed complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification hereunderreceive payment from the other Party for any Loss (a “Third Party Claim”), such Indemnified Party shall provide prompt written notice notification to Buyer Buyer, on the one hand, or the Equity HoldersSellers, on the other hand, whichever is the appropriate indemnifying Party hereunder (the “Indemnifying Party”)) within five days of the Indemnified Party’s notice of threatening or filing of such complaint or of the notice of the threatened or actual commencement of such audit, investigation, action or proceeding; provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty (30) 60 days thereafter, to assume the defense of such Third Party Claimcomplaint, audit, investigation, action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If the Indemnifying Party declines or fails to assume the defense of such Third Party Claim the audit, investigation, action or proceeding on the terms provided above within such thirty (30) 60-day period, however, the Indemnified Party may employ counsel reasonably satisfactory to the Indemnifying Party to represent or defend it in any such Third audit, investigation, action or proceeding, provided, however, that the Indemnified Party Claim andshall not settle any action in respect of which indemnification is payable under this Article (ix) without the consent of the Indemnifying Party, if which consent shall not be unreasonably withheld, conditioned or delayed. If the Indemnifying Party agrees that such Third Party Claim audit, investigation, action or proceeding is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claimaudit, investigation, action or proceeding. In any Third Party Claim audit, investigation, action or Misclassification Claim proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter and to retain its own counsel at such Party’s own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of any matter the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.
(cb) Subject to An Indemnifying Party shall not, without the provisions contained in Schedule 10.1(a)(iv)written consent of the Indemnified Party, no Indemnified Party may (i) settle or compromise any claim Third Party Claim or consent to the entry of any judgment with which does not include an unconditional written release by the claimant or plaintiff of the Indemnified Party from all liability in respect to of such Third Party Claim or (ii) settle or compromise any Third Party Claim if the settlement imposes equitable remedies or material obligations on the Indemnified Party other than financial obligations for which indemnification the Indemnified Party will be indemnified hereunder. No Third Party Claim which is being sought hereunder, including, but defended in good faith (and not limited to, abandoned) by the Indemnifying Party in accordance with respect to the terms of this Agreement shall be settled or compromised by the Indemnified Misclassification Claims, Party without the prior written consent of the Indemnifying Party which shall not be unreasonably withheld, conditioned or delayed (it being acknowledged that any settlement which is generally consistent with amounts of prior settlements of Misclassification Claims by the Company or any Company Subsidiary shall be deemed reasonable)Party.
(dc) If an Indemnified Party claims a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification Claimthird party claim covered by Section 9.3(a) hereof, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, arbitration, litigation or otherwise) and, within five (5) Business Days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in the Indemnified Party immediately available funds in an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h)any.
Appears in 1 contract
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt by an a Purchaser Indemnified Party or a Company Indemnified Party (hereinafter collectively referred to as an "INDEMNIFIED PARTY") of notice from by a third party of a threatened or filed any complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification hereunderreceive payment from the other party for any Purchaser Losses or Company Losses (as the case may be), such Indemnified Party shall provide prompt written notice to Buyer shall, within ten (10) days, notify the Company and Shareholders or the Equity HoldersPurchaser and Parent, whichever is as the appropriate indemnifying Party hereunder parties (the “Indemnifying Party”"INDEMNIFYING PARTY"), of such complaint or of the commencement of such action or proceeding; providedPROVIDED, howeverHOWEVER, that the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from liability for such claim arising otherwise than under this Agreement and such failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available prejudice to the Indemnifying Party with respect to such claim or (ii) material prejudice rights and defenses otherwise available to the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty twenty (3020) days thereafter, to assume the defense of such Third Party Claimaction or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If In the event, however, that the Indemnifying Party declines or fails to assume the defense of such Third Party Claim the action or proceeding or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such thirty (30) 20-day period, however, the then such Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if action or proceeding and the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will shall pay the reasonable fees and disbursements of such counsel as incurred; providedPROVIDED, howeverHOWEVER, that the Indemnifying Party will shall not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claimaction or proceeding. In any Third Party Claim action or Misclassification Claim proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter litigation and to retain its own counsel at such Party’s party's own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any matter action the defense of which they are maintaining it is maintaining, and to cooperate in good faith with each other with respect to the defense of any such matteraction.
(cb) Subject to the provisions contained in Schedule 10.1(a)(iv), no No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunderhereunder without the prior written consent of the Indemnifying Party, includingunless such settlement, but not limited to, with respect to Indemnified Misclassification Claimscompromise or consent includes an unconditional release of the Indemnifying Party from all liability arising out of such claim. An Indemnifying Party may not, without the prior written consent of the Indemnified Party, settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder unless: (i) the Indemnifying Party which shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness thereof; (ii) the terms or effect of the settlement shall not be unreasonably withheld, conditioned or delayed (it being acknowledged that encumber any settlement which is generally consistent with amounts of prior settlements the assets of Misclassification Claims by the Company any Indemnified Party or any Company Subsidiary affiliate thereof, or contain or result in any restriction, interference or condition that would apply to such Indemnified Party or its affiliates or to the conduct of any of their respective businesses; and (iii) the Indemnifying Party shall be deemed reasonable)obtain, as a condition of such settlement, a complete unconditional release of each Indemnified Party.
(dc) If In the event an Indemnified Party claims shall claim a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification ClaimAgreement, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation or otherwise) and, within five (5) Business Days business days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in the Indemnified Party immediately available funds funds, or as otherwise provided in this Agreement, in an amount equal to such claim as determined hereunder.
(d) Each Indemnified Party shall, and (ii) if in good faith, attempt to mitigate its Purchaser Losses or Company Losses, as the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h)case may be.
Appears in 1 contract
Sources: Asset Purchase Agreement (Return on Investment Corp)
Indemnification Procedure. A Party seeking indemnification (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to “Indemnified Misclassification Claims.
(b) Promptly after receipt by an Indemnified Party of notice from a third party of a threatened or filed complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party ClaimParty”) with respect to which such Indemnified under Section 9.1 or Section 9.2 shall notify, in writing, the other Party may be entitled to indemnification hereunder, such Indemnified Party shall provide prompt written notice to Buyer or the Equity Holders, whichever is the appropriate indemnifying Party hereunder (the “Indemnifying Party”); provided, however, that ) within ten (10) days of the assertion of any claim or discovery of any fact upon which the Indemnified Party intends to base a claim for indemnification. An Indemnified Party’s failure to so notify the Indemnifying Party shall not, however, relieve the such Indemnifying Party from any liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Indemnified Party with respect to such claim except to the extent that such Indemnifying Party is actually denied, during the period of delay in notice, the opportunity to remedy or otherwise mitigate the event or activity(ies) giving rise to the claim for indemnification and thereby suffers or otherwise incurs additional liquidated or other readily quantifiable damages as a result of such failure. The Indemnifying Party, while reserving the right to contest its obligations to indemnify hereunder, shall be responsible for the defense of any claim, demand, lawsuit or other proceeding in which the allegations, if proved, would trigger the Indemnifying Party’s obligations under Section 9.1 or 9.2, (iia) material prejudice that solely seek monetary damages and (b) as to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (a) and (b), the “Litigation Conditions”). At its option, the Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party. The Indemnified Party shall have the right at its own expense to participate jointly with respect to the Indemnifying Party in the defense of any such claim. The , demand, lawsuit or other proceeding, but the Indemnifying Party shall have the right, upon written notice delivered subject to the Indemnified Party within thirty (30) days thereafterLitigation Conditions being satisfied, to assume settle, try or otherwise dispose of or handle such claim, demand, lawsuit or other proceeding on such terms as the defense Indemnifying Party shall deem appropriate, subject to any reasonable objection of such Third Party Claim, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If Any settlement agreed to by the Indemnifying Party declines or fails to assume over the defense objection of such Third Party Claim within such thirty (30) day period, however, the Indemnified Party may employ counsel to represent only provide a monetary relief and may not include any admission of liability or defend it in any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claim. In any Third Party Claim injunctive relief or Misclassification Claim with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter and to retain its own counsel at such Party’s own expense. The Indemnifying Party or other action restricting the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of any matter the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.
(c) Subject to the provisions contained in Schedule 10.1(a)(iv), no Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder, including, but not limited to, with respect to Indemnified Misclassification Claims, without the prior written consent of the Indemnifying Party which shall not be unreasonably withheld, conditioned or delayed (it being acknowledged that any settlement which is generally consistent with amounts of prior settlements of Misclassification Claims by the Company or any Company Subsidiary shall be deemed reasonable).
(d) If an Indemnified Party claims a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification Claim, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation or otherwise) and, within five (5) Business Days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in immediately available funds an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h).
Appears in 1 contract
Sources: License and Supply Agreement (Cumberland Pharmaceuticals Inc)
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(bi) Promptly after receipt by an a Purchaser Indemnified Party of notice from by a third party of a threatened or filed any complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification hereunderis being sought under this Agreement, such Purchaser Indemnified Party shall provide prompt written notice to Buyer notify the Seller of such complaint or of the Equity Holders, whichever is the appropriate indemnifying Party hereunder (the “Indemnifying Party”)commencement of such action or proceeding; provided, however, that the failure to so notify the Indemnifying Party Seller shall not relieve the Indemnifying Party Seller from liability under this Agreement with respect to for such claim only if, claims except and only to the extent that, that such failure to notify the Indemnifying Party Seller results in (i) the forfeiture by of, or otherwise prejudices the Indemnifying Party of material Seller's ability to establish, rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party Seller with respect to such claim. The Indemnifying Party Seller shall have the right, upon written notice delivered to the Purchaser Indemnified Party within thirty (30) days thereafterParty, to assume the defense of such Third Party Claimaction or proceeding, including the employment of counsel reasonably satisfactory to the Purchaser Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counselcounsel as incurred. If the Indemnifying Party Seller does not elect to assume control of the defense of any such claims, the Seller shall be bound by the results otherwise obtained with respect to such claim. In the event, however, that the Seller declines or fails to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory to such Third Party Claim within Purchaser Indemnified Party, in either case in a timely manner, then such thirty (30) day period, however, the Purchaser Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if action or proceeding and the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will Seller shall pay the reasonable fees and disbursements of such counsel as incurredupon receipt of an invoice; provided, however, that the Indemnifying Party will Seller shall not be required to pay the fees and disbursements of more than one counsel for all Purchaser Indemnified Parties in any jurisdiction in any single Third Party Claimaction or proceeding. In any Third Party Claim action or Misclassification Claim proceeding with respect to which indemnification is being sought hereunderunder this Agreement, the Purchaser Indemnified Party Parties or the Indemnifying PartySeller, whichever is not assuming the defense of such action, shall have the right to participate in such matter litigation and to retain its own counsel at such Party’s party's own expense. The Indemnifying Party Purchaser Indemnified Parties or the Indemnified PartySeller, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party Seller or the Purchaser Indemnified PartyParties, as the case may be, reasonably apprised of the status of the defense of any matter claim the defense of which they are maintaining maintaining, and to cooperate in good faith with each other with respect to the defense of any such matteraction.
(cii) Subject Notwithstanding anything herein to the provisions contained in Schedule 10.1(a)(ivcontrary (including responsibility for defense of the claim), no Purchaser Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunderfrom the Seller under this Agreement, includingunless such settlement, but not limited tocompromise or consent includes an unconditional release of the Seller from all liability arising out of such claim, with respect to Indemnified Misclassification Claimsotherwise the prior written consent of the Seller must be obtained. The Seller shall not, without the prior written consent of the Indemnifying Party Purchaser, settle or compromise any claim or consent to the entry of any judgment with respect to which shall indemnification is being sought under this Agreement unless such settlement, compromise or consent includes an unconditional release of the Purchaser Indemnified Parties from all liability arising out of such claim and does not be unreasonably withheldcontain any equitable order, conditioned judgment or delayed (it being acknowledged that term which in any settlement which is generally consistent manner affects, restrains or interferes with amounts the business of prior settlements the Purchaser, any of Misclassification Claims by the Company Purchaser Indemnified Parties or any Company Subsidiary shall be deemed reasonable)of their respective affiliates.
(diii) If an In the event that a Purchaser Indemnified Party claims does claim a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification ClaimAgreement, such Purchaser Indemnified Party shall send written notice of such claim to the appropriate Indemnifying PartySeller. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Purchaser Indemnified Party has given such notice, such Purchaser Indemnified Party and the appropriate Indemnifying Party Seller shall establish the merits and amount of such claim (by mutual agreement, litigation agreement or otherwise) and, within five (5) Business Days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, arbitration as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer set forth in immediately available funds an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h8.8 hereof).
Appears in 1 contract
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(bi) Promptly after receipt by an a Seller Indemnified Party of notice from by a third party of a threatened or filed any complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification hereunderis being sought under this Agreement, such Seller Indemnified Party shall provide prompt written notice to notify Buyer of such complaint or of the Equity Holders, whichever is the appropriate indemnifying Party hereunder (the “Indemnifying Party”)commencement of such action or proceeding; provided, however, that the failure to so notify the Indemnifying Party shall Buyer does not relieve the Indemnifying Party Buyer from liability under this Agreement with respect to for such claim only if, except and only to the extent that, that such failure to notify the Indemnifying Party Buyer results in (i) the forfeiture by the Indemnifying Party of, or otherwise prejudices Buyer's or any of material its affiliates ability to establish rights and defenses otherwise available to the Indemnifying Party with respect to such claim Buyer or (ii) material prejudice to the Indemnifying Party any of its affiliates with respect to such claim. The Indemnifying Party shall Buyer will have the right, upon written notice delivered to the Seller Indemnified Party within thirty (30) days thereafterParty, to assume the defense of such Third Party Claimaction or proceeding, including the employment of counsel reasonably satisfactory to the Seller Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the reasonable fees and disbursements of such counselcounsel as incurred. If Buyer does not elect to assume control of the Indemnifying Party defense of any such claims, Buyer shall be bound by the results otherwise obtained with respect to such claim. In the event, however, that Buyer declines or fails to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory to such Third Party Claim within Seller Indemnified Party, in either case in a timely manner, then such thirty (30) day period, however, the Seller Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will action or proceeding and Buyer shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will Buyer is not be required to pay the fees and disbursements of more than one counsel for all Seller Indemnified Parties in any jurisdiction in any single Third Party Claimaction or proceeding. In any Third Party Claim action or Misclassification Claim proceeding with respect to which indemnification is being sought hereunderunder this Agreement, the Seller Indemnified Party Parties or the Indemnifying PartyBuyer, whichever is not assuming the defense of such action, shall have the right to participate in such matter litigation and to retain its own counsel at such Party’s party's own expense. The Indemnifying Party Seller Indemnified Parties or the Indemnified PartyBuyer, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party Buyer or the Seller Indemnified PartyParties, as the case may be, reasonably apprised of the status of the defense of any matter claim the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.
(c) Subject to the provisions contained in Schedule 10.1(a)(iv), no action. No Seller Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunderfrom Buyer under this Agreement without the prior written consent of Buyer, includingunless such settlement, but compromise or consent includes an unconditional release of Buyer and its affiliates from all liability arising out of such claim and does not limited tocontain any equitable order, judgment or term which in any manner affects, restrains or interferes with respect to the business of Buyer, any of the Buyer Indemnified Misclassification ClaimsParties or any of their respective affiliates. Buyer shall not, without the prior written consent of each of the Indemnifying Party Seller, settle or compromise any claim or consent to the entry of any judgment with respect to which shall not be unreasonably withheldindemnification is being sought under this Agreement unless such settlement, conditioned compromise or delayed (it being acknowledged that any settlement which is generally consistent with amounts consent includes an unconditional release of prior settlements of Misclassification Claims by the Company or any Company Subsidiary shall be deemed reasonable).
(d) If an Seller Indemnified Party claims a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification Claim, such Indemnified Party shall send written notice from all liability arising out of such claim to and does not contain any equitable order, judgment or term which in any material manner affects, restrains or interferes with the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation or otherwise) and, within five (5) Business Days business of the final determination Seller Indemnified Parties or any of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in immediately available funds an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h)affiliates.
Appears in 1 contract
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt by a Purchasers' Indemnitee or a Seller Indemnitee (hereinafter collectively referred to as an "Indemnified Party Party") of notice from by a third party of a threatened or filed any complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification hereunderreceive payment from the other party for any Purchasers' Damages or Seller Damages (as the case may be), such Indemnified Party shall provide prompt written notice to Buyer will notify Purchasers or Sellers, as the Equity Holders, whichever is the appropriate indemnifying Party hereunder case may be (the “"Indemnifying Party”"), promptly following the Indemnified Party's receipt of such complaint or of notice of the commencement of such audit, investigation, action or proceeding; provided, however, that the failure to so notify the Indemnifying Party shall will relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to or notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claim. The Indemnifying Party shall will have the right, upon written notice delivered to the Indemnified Party within thirty ten (3010) days thereafterthereafter assuming full responsibility for any Purchasers' Damages or Seller Damages (as the case may be) resulting from such audit, investigation, action or proceeding, to assume the defense of such Third Party Claimaudit, investigation, action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If If, however, the Indemnifying Party declines or fails to assume the defense of such Third Party Claim the audit, investigation, action or proceeding on the terms provided above or to employ counsel reasonably satisfactory to the Indemnified Party, in each case within such thirty (30) ten-day period, however, the then such Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim andaudit, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in questioninvestigation, action or proceeding and the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one (1) counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claimaudit, investigation, action or proceeding. In any Third Party Claim audit, investigation, action or Misclassification Claim proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall will have the right to participate in such matter and to retain its own counsel at such Party’s party's own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall will at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any matter the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.
(cb) Subject to the provisions contained in Schedule 10.1(a)(iv), no No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunderhereunder without the prior written consent of the Indemnifying Party, includingunless (i) the Indemnifying Party fails to assume and maintain the defense of such claim pursuant to this Section or (ii) such settlement, but not limited to, with respect to Indemnified Misclassification Claimscompromise or consent includes an unconditional release of the Indemnifying Party from all liability arising out of such claim. An Indemnifying Party may not, without the prior written consent of the Indemnifying Indemnified Party, settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder unless (i) such settlement, compromise or consent includes an unconditional release of the Indemnified Party from all liability arising out of such claim, (ii) does not contain any admission or statement suggesting any wrongdoing or liability on behalf of the Indemnified Party and (iii) does not contain any equitable order, judgment or term which shall not be unreasonably withheldin any manner affects, conditioned restrains or delayed (it being acknowledged that any settlement which is generally consistent interferes with amounts the business of prior settlements of Misclassification Claims by the Company Indemnified Party or any Company Subsidiary shall be deemed reasonable)of the Indemnified Party's Affiliates.
(dc) If an In the event any Indemnified Party claims should have a right to payment pursuant to this Agreement claim for indemnity against any Indemnifying Party that does not involving involve a Third Party Claim or a Misclassification Claimthird party claim, such the Indemnified Party shall send written deliver notice of such claim with reasonable promptness to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after The failure by any Indemnified Party so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability that it may have to such Indemnified Party with respect to any claim made pursuant to this Section, it being understood that notices for claims in respect of a breach of a representation or warranty must be delivered prior to the expiration of the applicable survival period for such representation or warranty under SECTION 8.1. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) calendar days following its receipt of such notice that the Indemnifying Party disputes its liability to the Indemnified Party under this Article, or the amount thereof, the claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party under this Article, and the Indemnifying Party shall pay the amount of such liability to the Indemnified Party on demand or, in the case of any notice in which the amount of the claim (or any portion of the claim) is estimated, on such later date when the amount of such claim (or such portion of such claim) becomes finally determined. If the Indemnifying Party has given timely disputed its liability with respect to such noticeclaim as provided above, as promptly as possible, such Indemnified Indemnifying Party and the appropriate Indemnifying Indemnified Party shall will establish the merits and amount of such claim (by mutual agreement, litigation litigation, arbitration or otherwise) and, within five (5) Business Days business days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, will pay to Buyer in the Indemnified Party immediately available funds in an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h).
Appears in 1 contract
Sources: Asset Purchase Agreement (Cohesant Technologies Inc)
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after following receipt by an Indemnified Party of notice from by a third party (including any Governmental Entity) of a threatened any complaint, dispute or filed complaint claim or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”including with respect to Tax matters addressed in Section 7.10) with respect to which such Indemnified Party may be entitled to indemnification hereunderpursuant hereto (a “Third-Party Claim”), such Indemnified Party shall provide prompt written notice thereof to Buyer or the Equity Holders, whichever is the appropriate indemnifying Party hereunder obligated to indemnify under this Agreement (the “Indemnifying Party”); provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement hereunder with respect to such claim Third-Party Claim only if, and only to if the extent that, Indemnifying Party is prejudiced by such failure to notify, including where such failure to so notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Third-Party with respect to such claimClaim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty (30) days thereafter, to assume undertake, conduct and control the defense of such Third Third-Party Claim, including the employment of counsel of its own choosing reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If In the event, however, that the Indemnifying Party declines or fails to assume the defense of such Third the Third-Party Claim on the terms provided above or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such thirty (30) day 30)-day period, howeverthen any Purchaser Losses or any Shareholder Losses (as the case may be), the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will pay shall include the reasonable fees and disbursements of such counsel for the Indemnified Party as incurred; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claim. In any Third Third-Party Claim or Misclassification Claim with respect to for which indemnification is being sought hereunder, hereunder the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such actionThird-Party Claim, shall have the right to participate in such matter and to retain its own counsel at such Party’s own expense. The Indemnifying Party or the Indemnified Party, Party (as the case may be, ) shall at all times use commercially reasonable efforts to keep the Indemnifying Party or the Indemnified Party, Party (as the case may be, ) reasonably apprised of the status of the defense of any matter the defense of which they are it is maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.
(cb) Subject to the provisions contained in Schedule 10.1(a)(iv), no No Indemnified Party may settle or compromise any claim Third-Party Claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder, including, but not limited to, with respect to Indemnified Misclassification Claims, hereunder without the prior written consent of the Indemnifying Party (which shall may not be unreasonably withheldwithheld or delayed), conditioned unless (i) the Indemnifying Party fails to assume and maintain the defense of such claim pursuant to Section 11.3(a) or delayed (it ii) such settlement, compromise or consent includes an unconditional release of the Indemnifying Party and its officers, directors, employees and Affiliates from all liability arising out of, or related to, such Third-Party Claim. An Indemnifying Party may not, without the prior written consent of the Indemnified Party (which may not be unreasonably withheld or delayed), settle or compromise any Third-Party Claim or consent to the entry of any judgment with respect to which indemnification is being acknowledged sought hereunder unless such settlement, compromise or consent (x) includes an unconditional release of the Indemnified Party and its officers, directors, employees and Affiliates from all liability arising out of, or related to, such Third-Party Claim, (y) does not contain any admission or statement suggesting any wrongdoing or liability on behalf of the Indemnified Party and (z) does not contain any equitable order, judgment or term that in any settlement which is generally consistent manner affects, restrains or interferes with amounts the business of prior settlements of Misclassification Claims by the Company Indemnified Party or any Company Subsidiary shall be deemed reasonable)of the Indemnified Party’s Affiliates.
(dc) If In the event an Indemnified Party claims a right to payment pursuant hereto with respect to this Agreement any matter not involving a Third Party Claim third party complaint, dispute or claim (a Misclassification “Direct Claim”), such Indemnified Party shall send written notice of such claim Direct Claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail Party (a “Notice of Claim”) promptly after the Indemnified Party becomes aware of the facts that form the basis for such claimDirect Claim. As promptly as possible after Such Notice of Claim shall specify the basis for such Direct Claim and the amount owed by the Indemnifying Party with respect to such Claim, to the extent then known by the Indemnified Party or, if not known, as estimated in good faith by the Indemnified Party. The failure by any Indemnified Party so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability that it may have to such Indemnified Party with respect to any Direct Claim made pursuant to this Section 11.3(c) except to the extent that the Indemnifying Party is prejudiced by such failure to notify. In the event the Indemnifying Party does not notify the Indemnified Party within thirty (30) days following its receipt of such Notice of Claim that the Indemnifying Party disputes its liability to the Indemnified Party under this Article XI or the amount thereof, the Direct Claim, only to the extent and as to the amount specified or estimated by the Indemnified Party in such Notice of Claim, shall be deemed a liability of the Indemnifying Party under this Article XI, and the Indemnifying Party shall pay the amount of such liability to the Indemnified Party on demand or, in the case of any notice in which the amount of the Direct Claim (or any portion of the Direct Claim) is estimated, on such later date when the amount of such Direct Claim (or such portion of such Direct Claim) becomes finally determined. In the event the Indemnifying Party has given timely disputed its liability with respect to such noticeDirect Claim as provided above, as promptly as possible, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim Direct Claim (by mutual agreement, litigation litigation, arbitration or otherwise) and, within five (5) Business Days of following the final determination of the merits and amount of such claimDirect Claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in the Indemnified Party immediately available funds in an amount equal to such claim Direct Claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h).
Appears in 1 contract
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after following receipt by an a Purchaser Indemnified Party or a Seller Indemnified Party, as applicable (an "Indemnified Party") of notice from by ----------------- a third party (including any Governmental Entity) of a threatened any complaint, dispute or filed complaint claim or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification hereunderreceive payment from the other party for any Purchaser Losses or any Seller Losses (as the -40- case may be), such Indemnified Party shall provide give Purchaser or the Sellers, as the case may be (the "Indemnifying Party"), reasonably prompt written notice to Buyer or the Equity Holders------------------- thereof, whichever is the appropriate indemnifying Party hereunder but in any event not later than thirty (the “Indemnifying Party”); 30) calendar days after receipt of such notice of such third party claim, provided, however, that the failure to -------- ------- so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement hereunder with respect to such claim only if, and only to the extent that, such failure to so notify the Indemnifying Party results in (i) the forfeiture by prejudices the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty twenty (3020) days thereafterthereafter assuming full responsibility for any Purchaser Losses or Seller Losses (as the case may be) resulting from such audit, investigation, action or proceeding, to assume the defense of such Third Party Claimaudit, investigation, action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If In the event, however, that the Indemnifying Party declines or fails to assume the defense of such Third Party Claim the audit, investigation, action or proceeding on the terms provided above or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such thirty (30) 20-day period, howeverthen any Purchaser Losses or any Seller Losses (as the case may be), the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will pay shall include the reasonable fees and disbursements of such counsel for the Indemnified Party as incurred; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claim. In any Third Party Claim audit, investigation, action or Misclassification Claim with respect to proceeding for which indemnification is being sought hereunder, hereunder the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter and to retain its own counsel at such Party’s party's own expense. The Indemnifying Party or the Indemnified Party, Party (as the case may be, ) shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, Party (as the case may be, ) reasonably apprised of the status of the defense of any matter the defense of which they are it is maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.
(cb) Subject to the provisions contained in Schedule 10.1(a)(iv), no No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunderhereunder without the prior written consent of the Indemnifying Party, includingunless (i) the Indemnifying Party fails to assume and maintain the defense of such claim pursuant to Section 10.03(a) or (ii) such settlement, but not limited to---------------- compromise or consent includes an unconditional release of the Indemnifying Party and its officers, with respect to Indemnified Misclassification Claimsdirectors, employees and affiliates from all liability arising out of such claim. An Indemnifying Party may not, without the prior written consent of the Indemnifying Indemnified Party, settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder unless (x) such settlement, compromise or consent includes an unconditional release of the Indemnified Party which shall and its officers, directors, employees and affiliates from all liability arising out of such claim, (y) does not be unreasonably withheldcontain any admission or statement suggesting any wrongdoing or liability on behalf of the Indemnified Party and (z) does not contain any equitable order, conditioned judgment or delayed (it being acknowledged term that in any settlement which is generally consistent manner affects, restrains or interferes with amounts the business of prior settlements of Misclassification Claims by the Company Indemnified Party or any Company Subsidiary shall be deemed reasonable)of the Indemnified Party's affiliates.
(dc) If In the event an Indemnified Party claims a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification Claimhereto, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying PartyParty (a "Notice of Claim"). Such notice Notice of --------------- Claim shall specify in reasonable detail the basis for such claim. As promptly as possible after The failure by any Indemnified Party so to notify the Indemnifying party shall not relieve the Indemnifying Party from any liability that it may have to such Indemnified Party with respect to any claim made pursuant to this Section 10.03(c), it being understood that ---------------- notices for claims in -41- respect of a breach of a representation or warranty must be delivered prior to the expiration of the survival period for such representation or warranty under Section 10.04. In the event the Indemnifying Party does not notify the -------------- Indemnified Party within thirty (30) days following its receipt of such notice that the Indemnifying Party disputes its liability to the Indemnified Party under this Article or the amount thereof, the claim specified by the Indemnified Party in such Notice of Claim shall be conclusively deemed a liability of the Indemnifying Party under this Section 10.03(c), and the Indemnifying Party shall ---------------- pay the amount of such liability to the Indemnified Party on demand or, in the case of any notice in which the amount of the claim (or any portion of the claim) is estimated, on such later date when the amount of such claim (or such portion of such claim) becomes finally determined. In the event the Indemnifying Party has given timely disputed its liability with respect to such noticeclaim as provided above, as promptly as possible, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation litigation, arbitration or otherwise) and, within five (5) Business Days of following the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in the Indemnified Party immediately available funds in an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h).
Appears in 1 contract
Sources: Stock and Limited Partnership Interest Purchase Agreement (Charys Holding Co Inc)
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt by an a Buyer Indemnified Party or a Seller Indemnified Party (hereinafter referred to as, collectively, an “Indemnified Party”) of notice from by a third party of a threatened or filed complaint any claim or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification hereunderreceive payment from any other party for any Losses (ignoring, for this purpose, the Threshold Amount (as hereinafter defined)), such Indemnified Party shall provide prompt written notice to shall, within ten (10) days, notify Buyer or the Equity HoldersSellers, whichever is as the appropriate indemnifying Party hereunder party or representative thereof (the “Indemnifying Party”), of such claim or of the commencement of such action or proceeding; provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material any rights and or defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty twenty (3020) days thereafter, upon agreeing that it shall be fully responsible for such claim (with no reservation of any rights other than the right to be subrogated to the rights of the Indemnified Party) to assume the responsibility and defense of such Third Party Claimaction or proceeding, including the employment engagement of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If In the event, however, that the Indemnifying Party declines or fails to assume the responsibility and defense of such Third Party Claim the action or proceeding and to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such thirty (30) 20-day period, however, the then such Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim andaction or proceeding, if and the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will shall not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claimaction or proceeding. In any Third Party Claim action or Misclassification Claim proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter litigation and to retain its own counsel at such Partyparty’s own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any matter action, the defense of which they are maintaining it is maintaining, and to cooperate in good faith with each other with respect to the defense of any such matteraction. The Indemnifying Party will not be entitled to assume control of the defense of a third-party claim, and will pay the reasonable fees and expenses of legal counsel retained by the Indemnified Party, if: (A) the Indemnified Party reasonably believes based on an opinion of counsel that a conflict of interest exists or would arise which, under applicable principles of legal ethics, would prohibit a single legal counsel from representing both the Indemnified Party and the Indemnifying Party in such third-party claim, other than a conflict which may exist due to the underlying nature of the duty to indemnify; (B) the Indemnifying Party has failed or is failing to prosecute or defend such claim, and is provided written notice of such failure by the Indemnified Party and such failure is not reasonably cured within fifteen (15) Business Days of receipt of such notice; or (C) the third party claim involves any allegation of criminal, quasi-criminal, fraudulent or infringement activity, unfair or deceptive trade practices by the Indemnified Party or any of its Affiliates.
(cb) Subject to the provisions contained in Schedule 10.1(a)(iv), no No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder without the prior written consent of the Indemnifying Party, unless such settlement, compromise, or consent includes an unconditional release of the Indemnifying Party from all liability arising out of such claim and is not conditioned upon the payment of any amount by the Indemnifying Party (or for which indemnification may be sought hereunder), includingor does not contain or result in any restriction, but not limited tointerference, with respect or condition that would apply to Indemnified Misclassification Claimssuch Indemnifying Party or its Affiliates or to the conduct of any of their respective businesses (whether through injunctive or equitable relief or otherwise). An Indemnifying Party may not, without the prior written consent of the Indemnified Party, settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder unless (i) the Indemnifying Party which shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness thereof; (ii) the terms or effect of the settlement shall not be unreasonably withheld, conditioned or delayed (it being acknowledged that encumber any settlement which is generally consistent with amounts of prior settlements the assets of Misclassification Claims by the Company any Indemnified Party or any Company Subsidiary Affiliate thereof, or contain or result in any restriction, interference or condition that would apply to such Indemnified Party or its Affiliates or to the conduct of any of their respective businesses; and (iii) the Indemnifying Party shall be deemed reasonable)obtain, as a condition of such settlement, a complete unconditional release of each Indemnified Party.
(dc) If In the event an Indemnified Party claims shall claim a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification ClaimAgreement, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation agreement or otherwisein accordance with Section 11.8 hereof) and, within five (5) Business Days business days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in the Indemnified Party immediately available funds in an amount amount, if any, equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h).
Appears in 1 contract
Indemnification Procedure. A Party seeking indemnification (a"Indemnified Party") The Buyer shall have notify, in writing, the right to control and defend, with counsel other Party ("Indemnifying Party") within fifteen (15) days of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations assertion of any claim or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt by an discovery of any fact upon which the Indemnified Party of notice from intends to base a third party of a threatened or filed complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such claim for indemnification. An Indemnified Party may be entitled to indemnification hereunder, such Indemnified Party shall provide prompt written notice to Buyer or the Equity Holders, whichever is the appropriate indemnifying Party hereunder (the “Indemnifying Party”); provided, however, that the 's failure to so notify the Indemnifying Party shall not, however, relieve the such Indemnifying Party from any liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Indemnified Party with respect to such claim except to the extent that such Indemnifying Party is actually denied, during the period of delay in notice, the opportunity to remedy or (iiotherwise mitigate the event or activity(ies) material prejudice giving rise to the claim for indemnification and thereby suffers or otherwise incurs additional liquidated or other readily quantifiable damages as a result of such failure. The Indemnifying Party, while reserving the right to contest its obligations to indemnify hereunder, shall be responsible for the defense of any claim, demand, lawsuit or other proceeding in connection with which the Indemnified Party claims indemnification hereunder. The Indemnified Party shall have the right at its own expense to participate jointly with the Indemnifying Party in the defense of any such claim, demand, lawsuit or other proceeding, but with respect to any issue involved in such claim. The , demand, lawsuit or other proceeding with respect to which the Indemnifying Party has acknowledged its obligation to indemnity the Indemnified Party hereunder, the Indemnifying Party shall have the rightright to select counsel, upon written notice delivered settle, try or otherwise dispose of or handle such claim, demand, lawsuit or other proceeding on such terms as the Indemnifying Party shall deem appropriate, subject to the Indemnified Party within thirty (30) days thereafter, to assume the defense any reasonable objection of such Third Party Claim, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If the Indemnifying Party declines or fails to assume the defense of such Third Party Claim within such thirty (30) day period, however, the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claim. In any Third Party Claim or Misclassification Claim with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter and to retain its own counsel at such Party’s own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of any matter the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.
(c) Subject to the provisions contained in Schedule 10.1(a)(iv), no Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder, including, but not limited to, with respect to Indemnified Misclassification Claims, without the prior written consent of the Indemnifying Party which shall not be unreasonably withheld, conditioned or delayed (it being acknowledged that any settlement which is generally consistent with amounts of prior settlements of Misclassification Claims by the Company or any Company Subsidiary shall be deemed reasonable).
(d) If an Indemnified Party claims a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification Claim, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation or otherwise) and, within five (5) Business Days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in immediately available funds an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h).
Appears in 1 contract
Sources: License, Supply and Distribution Agreement (Minimed Inc)
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after following receipt by an Indemnified Party of notice from by a third party (including any Governmental Body) of a threatened any complaint, dispute or filed complaint claim or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification hereunderpursuant hereto (a “Third-Party Claim”), such Indemnified Party shall provide prompt written notice thereof to Buyer or the Equity Holders, whichever is the appropriate indemnifying Party hereunder party obligated to indemnify under this Agreement (the “Indemnifying Party”); , provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement hereunder with respect to such claim Third-Party Claim only if, and only to the extent that, such failure to so notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Third-Party with respect to such claimClaim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty twenty (3020) calendar days thereafterthereafter assuming full responsibility for any Purchaser Losses or Shareholder Losses (as the case may be) resulting from such Third-Party Claim, to assume the defense of such Third Third-Party Claim, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If In the event, however, that the Indemnifying Party declines or fails to assume the defense of such Third Third-Party Claim on the terms provided above or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such thirty twenty (30) day 20)-day period, howeverthen any Purchaser Losses or any Shareholder Losses (as the case may be), the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will pay shall include the reasonable fees and disbursements of such counsel for the Indemnified Party as incurred; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claim. In any Third Third-Party Claim or Misclassification Claim with respect to for which indemnification is being sought hereunder, hereunder the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such actionThird-Party Claim, shall have the right to participate in such matter and to retain its own counsel at such Party’s own expense. The Indemnifying Party or the Indemnified Party, Party (as the case may be, ) shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, Party (as the case may be, ) reasonably apprised of the status of the defense of any matter the defense of which they are it is maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.
(cb) Subject to the provisions contained in Schedule 10.1(a)(iv), no No Indemnified Party may settle or compromise any claim Third-Party Claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder, including, but not limited to, with respect to Indemnified Misclassification Claims, hereunder without the prior written consent of the Indemnifying Party (which shall may not be unreasonably withheldwithheld or delayed), conditioned unless (i) the Indemnifying Party fails to assume and maintain diligently the defense of such Third-Party Claim pursuant to Section 8.3(a) or delayed (it ii) such settlement, compromise or consent includes an unconditional release of the Indemnifying Party and its officers, directors, employees and Affiliates from all liability arising out of, or related to, such Third-Party Claim and such release does not contain any admission or statement acknowledging any wrongdoing or liability on behalf of the Indemnifying Party. An Indemnifying Party may not, without the prior written consent of the Indemnified Party, settle or compromise any Third-Party Claim or consent to the entry of any judgment with respect to which indemnification is being acknowledged sought hereunder unless such settlement, compromise or consent (i) includes an unconditional release of the Indemnified Party and its officers, directors, employees and Affiliates from all liability arising out of, or related to, such Third-Party Claim, (ii) does not contain any admission or statement suggesting any wrongdoing or liability on behalf of the Indemnified Party, and (iii) does not contain any equitable order, judgment or term that in any settlement which is generally consistent manner affects, restrains or interferes with amounts the business of prior settlements of Misclassification Claims by the Company Indemnified Party or any Company Subsidiary shall be deemed reasonable)of the Indemnified Party’s Affiliates.
(dc) If In the event an Indemnified Party claims a right to payment pursuant hereto with respect to this Agreement any matter not involving a Third Party Claim or (a Misclassification “Direct Claim”), such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying PartyParty (a “Notice of Claim”). Such notice Notice of Claim shall specify in reasonable detail the basis for such claimDirect Claim. As promptly as possible after The failure by any Indemnified Party to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability that it may have to such Indemnified Party with respect to any Direct Claim made pursuant to this Section 8.3(c), it being understood that Notices of Claim in respect of a breach of a representation or warranty must be delivered prior to the expiration of the survival period for such representation or warranty under Section 8.4. In the event the Indemnifying Party does not notify the Indemnified Party within thirty (30) calendar days following its receipt of such Notice of Claim that the Indemnifying Party disputes its liability to the Indemnified Party under this Article VIII or the amount thereof, the Direct Claim specified by the Indemnified Party in such Notice of Claim shall be conclusively deemed a liability of the Indemnifying Party under this Article VIII, and the Indemnifying Party shall pay the amount of such liability to the Indemnified Party on demand or, in the case of any notice in which the amount of the Direct Claim (or any portion of the Direct Claim) is estimated, on such later date when the amount of such Direct Claim (or such portion of such Direct Claim) becomes finally determined. In the event the Indemnifying Party has given timely disputed its liability with respect to such noticeDirect Claim as provided above, as promptly as reasonably practicable, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim Direct Claim (by mutual agreement, litigation or otherwise) and, within five (5) Business Days of following the final determination of the merits and amount of such claimDirect Claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in the Indemnified Party immediately available funds in an amount equal to such claim Direct Claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h).
Appears in 1 contract
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt by an Indemnified Party of notice from a third party of a threatened or filed complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification hereunder, such Indemnified Party shall provide prompt written notice to Buyer or the Equity Holders, whichever is the appropriate indemnifying Party hereunder (the “Indemnifying Party”); provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the right, upon written notice delivered at its sole discretion and expense, to be represented by counsel of its choice, reasonably satisfactory to the Indemnified Party within thirty (30) days thereafterParty, and to assume the defense of any Proceeding that relates to any Losses for which indemnification may be sought hereunder; provided that (i) the Indemnifying Party may only assume control of such Third Party Claim, including the employment of counsel reasonably satisfactory defense if (A) it acknowledges in writing to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall any damages, fines, costs or other liabilities that may be satisfactory to assessed against the Indemnified Party if Buyer in connection with such Proceeding constitute Losses for which the Indemnified Party shall be indemnified pursuant to this Article VII, (B) the ad damnum is less than or equal to the amount of Losses for which the Indemnifying Party is liable under this Article VII and the unclaimed balance of the Escrow Fund, and (C) an adverse resolution of the Proceeding would not have a material adverse effect on the goodwill or reputation of the Indemnified Party or the business, operations or future conduct of the Indemnified Party and (ii) the Indemnifying Party may not assume control of the defense of an Proceeding involving criminal liability or in which equitable relief is sought against the Indemnified Party) and the payment of the fees and disbursements of such counsel. If the Indemnifying Party declines does not, or fails is not permitted under the terms hereof to, so assume control of the defense of a Proceeding, the Indemnified Party shall control such defense. The Non-controlling Party may participate in such defense at its own expense. The Controlling Party shall keep the Non-controlling Party advised of the status of such Proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-controlling Party with respect thereto. The Non-controlling Party shall furnish the Controlling Party with such information as it may have with respect to assume such Proceeding (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 otherwise cooperate with and assist the Controlling Party in the defense of such Third Party Claim within such thirty (30) day period, however, Proceeding. The fees and expenses of counsel to the Indemnified Party may employ counsel with respect to represent an Proceeding shall be considered Losses for purposes of this Agreement if (I) the Indemnified Party controls the defense of such Proceeding pursuant to the terms of this Section 7.4(g) or defend it in any such Third Party Claim and, if (II) the Indemnifying Party agrees that assumes control of such Third Party Claim is a matter with respect to which defense and the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurred; provided, however, reasonably concludes that the Indemnifying Party will not be required to pay and the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claim. In any Third Party Claim have conflicting interests or Misclassification Claim different defenses available with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter and to retain its own counsel at such Party’s own expenseProceeding. The Indemnifying Party shall not agree to any settlement of, or the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of any matter the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.
(c) Subject to the provisions contained in Schedule 10.1(a)(iv), no Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunderarising from, including, but not limited to, with respect to Indemnified Misclassification Claims, any Proceeding without the prior written consent of the Indemnifying Party Indemnified Party, which shall not be unreasonably withheld, conditioned or delayed (it being acknowledged delayed; provided that any settlement which is generally consistent with amounts the consent of prior settlements of Misclassification Claims by the Company or any Company Subsidiary shall be deemed reasonable).
(d) If an Indemnified Party claims a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification Claim, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation or otherwise) and, within five (5) Business Days of the final determination of the merits and amount of such claim, (i) not be required if the Indemnifying Party is an Equity Holder(s), agrees in writing to pay any amounts payable pursuant to such Equity Holder(ssettlement or judgment and such settlement or judgment includes a complete release of the Indemnified Party from further liability and has no other adverse effect on the Indemnified Party. Except as provided in Section 7.4(h) shall, subject to Sections 10.5 and 10.6 or, as applicablebelow, the Sellers’ Representative (on behalf Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such Proceeding without the prior written consent of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in immediately available funds an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available fundsParty, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h)not be unreasonably withheld, conditioned or delayed.
Appears in 1 contract
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after following receipt by an a Purchaser Indemnified Party or a Seller Indemnified Party, as applicable (an "Indemnified Party") of notice from by a ----------------- third party (including any Governmental Entity) of a threatened any complaint, dispute or filed complaint claim or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification hereunderreceive payment from the other party for any Purchaser Losses or any Seller Losses (as the - 41 - case may be), such Indemnified Party shall provide prompt written notice to Buyer notify Purchaser or the Equity HoldersSeller, whichever is as the appropriate indemnifying Party hereunder case may be (the “"Indemnifying Party”"); , provided, however, that the failure ------------------ -------- -------- to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement hereunder with respect to such claim only if, and only to the extent that, such failure to so notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty twenty (3020) days thereafterthereafter assuming full responsibility for any Purchaser Losses or Seller Losses (as the case may be) resulting from such audit, investigation, action or proceeding, to assume the defense of such Third Party Claimaudit, investigation, action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If In the event, however, that the Indemnifying Party declines or fails to assume the defense of such Third Party Claim the audit, investigation, action or proceeding on the terms provided above or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such thirty (30) 20-day period, howeverthen any Purchaser Losses or any Seller Losses (as the case may be), the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will pay shall include the reasonable fees and disbursements of such counsel for the Indemnified Party as incurred; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claim. In any Third Party Claim audit, investigation, action or Misclassification Claim with respect to proceeding for which indemnification is being sought hereunder, hereunder the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter and to retain its own counsel at such Party’s party's own expense. The Indemnifying Party or the Indemnified Party, Party (as the case may be, ) shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, Party (as the case may be, ) reasonably apprised of the status of the defense of any matter the defense of which they are it is maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.
(cb) Subject to the provisions contained in Schedule 10.1(a)(iv), no No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunderhereunder without the prior written consent of the Indemnifying Party, includingunless (i) the Indemnifying Party fails to assume and maintain the defense of such claim pursuant to Section 10.03(a) or (ii) such settlement, but not limited to---------------- compromise or consent includes an unconditional release of the Indemnifying Party and its officers, with respect to Indemnified Misclassification Claimsdirectors, employees and affiliates from all liability arising out of such claim. An Indemnifying Party may not, without the prior written consent of the Indemnifying Indemnified Party, settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder unless (x) such settlement, compromise or consent includes an unconditional release of the Indemnified Party which shall and its officers, directors, employees and affiliates from all liability arising out of such claim, (y) does not be unreasonably withheldcontain any admission or statement suggesting any wrongdoing or liability on behalf of the Indemnified Party and (z) does not contain any equitable order, conditioned judgment or delayed (it being acknowledged term that in any settlement which is generally consistent manner affects, restrains or interferes with amounts the business of prior settlements of Misclassification Claims by the Company Indemnified Party or any Company Subsidiary shall be deemed reasonable)of the Indemnified Party's affiliates.
(dc) If In the event an Indemnified Party claims a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification Claimhereto, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying PartyParty (a "Notice of Claim"). Such notice Notice of --------------- Claim shall specify in reasonable detail the basis for such claim. As promptly as possible after The failure by any Indemnified Party so to notify the Indemnifying party shall not relieve the Indemnifying Party from any liability that it may have to such Indemnified Party with respect to any claim made pursuant to this Section 10.03(c), it being understood that ---------------- notices for claims in respect of a breach of a representation or warranty must be delivered prior to the expiration of the survival period for such representation or warranty under Section 10.04. In -------------- the event the Indemnifying Party does not notify the Indemnified Party within thirty (30) days following its receipt of such notice that the Indemnifying Party disputes its liability to the Indemnified Party under this Article or the amount thereof, the claim specified by the Indemnified Party in such Notice of Claim shall be conclusively deemed a liability of the Indemnifying Party under this Section 10.03(c), and the Indemnifying Party shall pay the amount of such ------------------ liability to the Indemnified Party on demand or, in the case of any notice in which the amount of the claim (or any portion of the claim) is estimated, on such later date when the amount of such claim (or such portion of such claim) becomes finally determined. In the event the Indemnifying Party has given timely disputed its liability with respect to such noticeclaim as provided above, as promptly as possible, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation litigation, arbitration or otherwise) and, within five (5) Business Days of following the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in the Indemnified Party immediately available funds in an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h).
Appears in 1 contract
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt by an Indemnified Party of notice from by a third party (including any Governmental Body) of a threatened or filed any complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to receive payment from Purchaser for any Losses subject to indemnification hereunderhereunder (“Seller Losses”), such Indemnified Party shall provide prompt written notice to Buyer or will notify the Equity Holders, whichever is the appropriate indemnifying Party hereunder (the “Indemnifying Party”)Purchaser in writing thereof; provided, however, that the failure to so notify the Indemnifying Party shall Purchaser will relieve the Indemnifying Party Purchaser from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party Purchaser results in (i) the forfeiture by the Indemnifying Party Purchaser of material rights and defenses otherwise available to the Indemnifying Party Purchaser with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to materially prejudices Purchaser in exercising such claimrights or defenses. The Indemnifying Party Purchaser shall have the right, upon written notice delivered to the Indemnified Party within thirty (30) days thereafter, to assume the defense of such Third Party Claimaudit, investigation, action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party Party, within twenty (20) days of receiving such notice, but in any event, prior to the time any answer or other filing must be made, and Buyer hereby acknowledges that King & Spalding LLP Purchaser shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and responsible for the payment of the fees and disbursements of such counsel. If In the Indemnifying Party event, however, that Purchaser declines or fails to assume the defense of such Third Party Claim the audit, investigation, action or proceeding on the terms provided above or to employ qualified counsel, in either case within such thirty (30) day periodthe period described in the immediately preceding sentence, however, then the Indemnified Party may employ shall have the right to assume the defense of such action and retain counsel to represent or defend it in any such Third Party Claim and, if of its choosing and the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will Purchaser shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claim. In any Third Party Claim audit, investigation, action or Misclassification Claim with respect to proceeding for which indemnification is being sought hereunderPurchaser has assumed the defense, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall will have the right to participate in such matter and to retain its own counsel reasonably satisfactory to Purchaser at such the Indemnified Party’s own expense. The Indemnifying Party or ; provided, however, the Indemnified Party, as Party shall have the case right to employ separate counsel reasonably satisfactory to Purchaser at the cost of Purchaser if the Indemnified Party shall be advised by defense counsel that there may be, shall be one or more legal defenses which are different or additional to those defenses that are available to the Purchaser. Purchaser will at all times use reasonable efforts to keep the Indemnifying Indemnified Party or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any matter the defense of which they are maintaining Purchaser has assumed and to cooperate in good faith with each other the Indemnified Party with respect to the defense of any such matter.
(cb) Subject to the provisions contained in Schedule 10.1(a)(iv), no No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunderhereunder without the prior written consent of Purchaser, includingunless (i) Purchaser fails to assume and maintain the defense of such claim pursuant to Section 13.2(a) or (ii) such settlement, but not limited to, with respect to Indemnified Misclassification Claimscompromise or consent includes an unconditional release of Purchaser and its officers and directors from all liability arising out of such claim. The Purchaser may not, without the prior written consent of the Indemnifying Party Indemnified Party, settle or compromise any claim or consent to the entry of any judgment with respect to which shall not be unreasonably withheldindemnification is being sought hereunder unless such settlement, conditioned compromise or delayed (it being acknowledged that any settlement which is generally consistent with amounts consent includes an unconditional release of prior settlements all Indemnified Parties from all liability arising out of Misclassification Claims by the Company or any Company Subsidiary shall be deemed reasonable)such claim.
(dc) If In the event an Indemnified Party claims a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification ClaimArticle 13, such Indemnified Party shall will send written notice of such claim to the appropriate Indemnifying PartyPurchaser. Such notice shall will specify in reasonable detail the basis for such claimclaim and the amount to be paid. As promptly as possible after Purchaser agrees to pay to the Indemnified Party has given such notice, such or any third party as directed by the Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation or otherwise) and, within five (5) Business Days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer promptly in immediately available funds an amount equal to the stipulated amount set forth in such notice; provided, however, no payment shall be required to be made unless and until all notice and other procedural requirements of this Article 13 have been satisfied.
(d) Notwithstanding the foregoing, Purchaser shall not be liable to pay any Losses for which insurance proceeds are available and any Indemnified Party receiving such insurance proceeds for any claim as determined hereundercovered by the indemnification provided in this Article 13 shall, and (ii) if to the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal extent Purchaser has paid any Losses with respect to such Stockholders’ and Warrant Holder’s Pro Rata Percentage claim, pay over such insurance proceeds to Purchaser; provided, however, pending receipt of any such claim as determined hereunder in immediately available funds and insurance proceeds Purchaser shall be liable for Losses (Bincluding, without limitation, any defense costs) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h)extent provided hereunder.
Appears in 1 contract
Indemnification Procedure. (a) The 8.4.1 Upon the occurrence of a Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Seller Indemnified Misclassification Claims.
(b) Promptly after receipt by an Indemnified Party of notice from Liability not involving a third party of a threatened or filed complaint or Claim, the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification hereunder, such Indemnified Party shall provide prompt written notice to Buyer or the Equity Holders, whichever is the appropriate indemnifying Party hereunder (the “Indemnifying Party”); provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the rightshall, upon written notice delivered demand, pay to the Indemnified Party within thirty (30) days thereafter, to assume the defense or on behalf of such Third Party Claim, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If the Indemnifying Party declines or fails to assume the defense of such Third Party Claim within such thirty (30) day period, however, the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect amounts to which the Indemnified Party is entitled to receive by reason of the provisions of this Article Eight. Such payment from shall be made in cash or other immediately available funds at the Indemnifying then address of the Indemnified Party for the Loss in questionnotice purposes pursuant to this Agreement.
8.4.2 If, within 30 business days of receipt of a Claim Notice involving a third party Claim, the Party Indemnifying Party will pay does not elect in writing to control the reasonable fees defense of the Claim described therein or does not thereafter actively and disbursements of such counsel as incurred; providedin good faith prosecute the defense thereof (including, howeverif necessary, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for by all Indemnified Parties in any jurisdiction in any single Third Party Claim. In any Third Party Claim or Misclassification Claim with respect to which indemnification is being sought hereunderappropriate legal proceedings, including appeal), the Indemnified Party or the Indemnifying Party, whichever is not assuming may (but shall have no obligation to) elect to thereafter control all aspects of the defense of any such actionClaim with attorneys of its choice, at the expense of the Party Indemnifying, and the Party Indemnifying shall be bound by the result obtained with respect thereto by the Indemnified Party.
8.4.3 If the Party Indemnifying elects to conduct the defense of a third party Claim, such may be conducted in the name and on behalf of the Party Indemnifying or the Indemnified Party as may be appropriate. Such contest shall be conducted by attorneys selected and employed and compensated by the Party Indemnifying; provided, the Indemnified Party shall have the right to participate in such matter proceedings and to retain be represented by attorneys of its own counsel at choosing; however, the cost and expense attributable to such Party’s own expense. The Indemnifying attorneys employed by the Indemnified Party or shall be borne solely by the Indemnified Party. Even if the Indemnified Party joins in any such contest, as the case may beParty Indemnifying shall have full authority to determine all action to be taken with respect thereto; provided, however, that no Encumbrance on any asset of the Indemnified Party shall result therefrom and that no judgment, award, decree, order, injunction or equitable relief binding on the Indemnified Party shall be agreed to by the Indemnifying Party without the written consent of the Indemnified Party which consent shall not be unreasonably withheld. Any refusal to consent shall be based on written advice by legal counsel to the Indemnified Party. The Indemnified Party shall at all times use reasonable efforts retain the right to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of settle any matter the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any Claim. If such matter.
(c) Subject to the provisions contained in Schedule 10.1(a)(iv), no Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification settlement is being sought hereunder, including, but not limited to, with respect to Indemnified Misclassification Claims, without the prior written consent of the Indemnifying Party (which shall will not be unreasonably withheldwithheld or delayed), conditioned or delayed (it being acknowledged that any settlement which is generally consistent with amounts of prior settlements of Misclassification Claims by the Company or any Company Subsidiary Indemnifying Party shall be deemed reasonable)relieved of its obligations with respect to such Claim under this Article Eight.
(d) If an Indemnified Party claims a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification 8.4.4 At any time after commencement of the defense of any Claim, such Indemnified the Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after may request the Indemnified Party has given to agree in writing to the abandonment of such noticecontest or to the payment or compromise by the Party Indemnifying of such Claim, whereupon such action shall be taken unless the Indemnified Party determines that the contest should be continued, and so notifies the appropriate Party Indemnifying Party shall establish the merits and amount in writing within 15 working days of such claim (by mutual agreementrequest from the Party Indemnifying. If the Indemnified Party determines that the contest should be continued, litigation or otherwise) and, within five (5) Business Days the Party Indemnifying shall be liable hereunder only to the extent of the final determination lesser of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(samount which the other party(ies) shall, subject to Sections 10.5 and 10.6 or, the contested Claim had agreed to accept in payment or compromise as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause time the Escrow Agent to, pay Party Indemnifying made its request for abandonment to Buyer in immediately available funds an amount equal to such claim as determined hereunder, and the Indemnified Party or (ii) if the amount for which the Party Indemnifying is found to be liable with respect to such Claim, so long as no legal or property right of the Indemnified Party is hereunder shall be lessened or reduced in value as a result of the Buyerpayment or compromise. The Partying Indemnifying shall be entitled to recover from the Indemnified Party any additional expenses (including reasonable attorneys' fees) incurred by such Party Indemnifying as a result of such decision by the Indemnified Party to continue to contest such Claim.
8.4.5 If requested by the Party Indemnifying, the Buyer shall pay Indemnified Party agrees to (A) cooperate with the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder Party Indemnifying in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, contesting any Claim which the Company Party Indemnifying elects to contest or, if necessary to preserve the right to assert the same, in making any counterclaim against the Person asserting the Claim, or any cross-complaint against any other Person; provided, the Party Indemnifying shall promptly distribute to reimburse the Option Holders Indemnified Party for any reasonable expenses (including reasonable attorneys' fees) incurred by it in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h)so cooperating.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Computer Language Research Inc)
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(bi) Promptly after receipt by an a Optio Indemnified Party of notice from by a third party of a threatened or filed any complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification hereunderis being sought under this Agreement, such Optio Indemnified Party shall provide prompt written notice to Buyer notify Optio of such complaint or of the Equity Holders, whichever is the appropriate indemnifying Party hereunder (the “Indemnifying Party”)commencement of such action or proceeding; provided, however, that the failure to so notify the Indemnifying Party shall Optio does not relieve the Indemnifying Party Optio from liability under this Agreement with respect to for such claim only if, except and only to the extent that, that such failure to notify the Indemnifying Party Optio results in (i) the forfeiture by the Indemnifying Party of, or otherwise prejudices Optio's or any of material its affiliates ability to establish rights and defenses otherwise available to the Indemnifying Party with respect to such claim Optio or (ii) material prejudice to the Indemnifying Party any of its affiliates with respect to such claim. The Indemnifying Party shall Optio will have the right, upon written notice delivered to the Optio Indemnified Party within thirty (30) days thereafterParty, to assume the defense of such Third Party Claimaction or proceeding, including the employment of counsel reasonably satisfactory to the Optio Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the reasonable fees and disbursements of such counselcounsel as incurred. If Optio does not elect to assume control of the Indemnifying Party defense of any such claims, Optio shall be bound by the results otherwise obtained with respect to such claim. In the event, however, that Optio declines or fails to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory to such Third Party Claim within Optio Indemnified Party, in either case in a timely manner, then such thirty (30) day period, however, the Optio Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will action or proceeding and Buyer shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will Optio is not be required to pay the fees and disbursements of more than one counsel for all Optio Indemnified Parties in any jurisdiction in any single Third Party Claimaction or proceeding. In any Third Party Claim action or Misclassification Claim proceeding with respect to which indemnification is being sought hereunderunder this Agreement, the Optio Indemnified Party Parties or the Indemnifying PartyOptio, whichever is not assuming the defense of such action, shall have the right to participate in such matter litigation and to retain its own counsel at such Party’s party's own expense. The Indemnifying Party Optio Indemnified Parties or the Indemnified PartyOptio, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party Optio or the Optio Indemnified PartyParties, as the case may be, reasonably apprised of the status of the defense of any matter claim the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matteraction.
(cii) Subject to the provisions contained in Schedule 10.1(a)(iv), no No Optio Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunderfrom Optio under this Agreement without the prior written consent of Optio, includingunless such settlement, but compromise or consent includes an unconditional release of Optio and its affiliates from all liability arising out of such claim and does not limited tocontain any equitable order, judgment or term which in any manner affects, restrains or interferes with respect to the business of Optio, any of the Optio Indemnified Misclassification ClaimsParties or any of their respective affiliates. Optio shall not, without the prior written consent of each Optio Indemnified Party, settle or compromise any claim or consent to the Indemnifying entry of any judgment with respect to which indemnification is being sought under this Agreement unless such settlement, compromise or consent includes an unconditional release of Optio Indemnified Party from all liability arising out of such claim and does not contain any equitable order, judgment or term which shall not be unreasonably withheldin any material manner affects, conditioned restrains or delayed (it being acknowledged that any settlement which is generally consistent interferes with amounts the business of prior settlements of Misclassification Claims by the Company Optio Indemnified Parties or any Company Subsidiary shall be deemed reasonable)of their respective affiliates.
(diii) If In the event that an Optio Indemnified Party claims does claim a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification ClaimAgreement, such Optio Indemnified Party shall send written notice of such claim to the appropriate Indemnifying PartyOptio. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the such Optio Indemnified Party has given such notice, such Indemnified Party Shareholders and the appropriate Indemnifying Party Optio shall establish the merits and amount of such claim (by mutual agreement, litigation litigation, arbitration, mediation or otherwise) and, within five (5) Business Days business days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is Optio shall deliver an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf amount of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer cash in immediately available funds an amount equal to such Optio Indemnified Party as appropriate to satisfy and discharge such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h)so determined.
Appears in 1 contract
Indemnification Procedure. In any case under this Agreement where Seller has indemnified a Buyer Indemnified Party or Buyer has indemnified a Seller Indemnified Party (the indemnifying party hereinafter the "Indemnifying Party" and the party entitled to indemnification hereinafter the "Indemnified Party") against any Claim, indemnification shall be conditioned on compliance with the procedure and shall be subject to the limitations outlined below:
(a) The Buyer shall have Provided that prompt notice is given of a Claim for which indemnification might be claimed under this Article 10, unless the right failure to control provide such notice does not actually and materially prejudice the interests of the Indemnifying Party, the Indemnifying Party promptly will defend, with counsel contest, or otherwise protect against any such Claim at its own cost and expense. Such notice shall describe the Claim in reasonable detail and shall indicate the amount (estimated, if necessary) of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations loss that has been or reviews that relate to may be suffered by an Indemnified Misclassification ClaimsParty.
(b) Promptly after receipt An Indemnified Party may, but will not be obligated to, participate at its own expense in a defense thereof by counsel of its own choosing, but the Indemnifying Party shall be entitled to control the defense unless such Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter, provided that the Indemnifying Party may only settle or compromise the matter subject to indemnification without the consent of the Indemnified Party if such settlement includes a complete release of all Indemnified Parties as to the matters in dispute and provided further that such Indemnified Party will not unreasonably withhold consent to any settlement or compromise that requires its consent.
(c) In the event the Indemnifying Party fails to timely defend, contest, or otherwise protect against any such Claim, an Indemnified Party may, but will not be obligated to, defend, contest, or otherwise protect against the same, and make any reasonable compromise or settlement thereof and recover the entire costs thereof from the Indemnifying Party, including reasonable attorneys' fees, disbursements and all amounts paid as a result of notice from a third party of a threatened or filed complaint such Claim or the threatened compromise or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification hereunder, such Indemnified Party shall provide prompt written notice to Buyer or the Equity Holders, whichever is the appropriate indemnifying Party hereunder (the “Indemnifying Party”)settlement thereof; provided, however, that the failure to so notify if the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty (30) days thereafter, to assume undertakes the defense of such Third Party Claimmatter, including the employment of counsel reasonably satisfactory to the an Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall not be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If the Indemnifying Party declines or fails to assume the defense of such Third Party Claim within such thirty (30) day period, however, the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment recover from the Indemnifying Party for its costs incurred in the Loss in question, the Indemnifying Party will pay defense thereof other than the reasonable fees and disbursements costs of such counsel as incurred; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claim. In any Third Party Claim or Misclassification Claim with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter and to retain its own counsel at such Party’s own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of any matter the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.
(c) Subject to the provisions contained in Schedule 10.1(a)(iv), no Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder, including, but not limited to, with respect to Indemnified Misclassification Claims, without the prior written consent of the Indemnifying Party which shall not be unreasonably withheld, conditioned or delayed (it being acknowledged that any settlement which is generally consistent with amounts of prior settlements of Misclassification Claims by the Company or any Company Subsidiary shall be deemed reasonable)providing assistance.
(d) If an The Indemnified Party claims a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification Claim, Parties shall cooperate and provide such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly assistance as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation or otherwise) and, within five (5) Business Days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, may reasonably request in connection with the defense of the matter subject to Sections 10.5 indemnification and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in immediately available funds an amount equal to such claim as determined hereunder, and (ii) if connection with recovering from any third parties amounts that the Indemnifying Party is may pay or be required to pay by way of indemnification hereunder. The Indemnified Parties shall take commercially reasonable steps to protect its position with respect to any matter that may be the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf subject of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined indemnification hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim same manner as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h)it would any similar matter where no indemnification is available.
Appears in 1 contract
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt by an a Purchaser Indemnified Party or a Company Indemnified Party (hereinafter collectively referred to as an "INDEMNIFIED PARTY") of notice from by a third party of a threatened or filed any complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification hereunderreceive payment from the other party for any Purchaser Losses or Company Losses (as the case may be), such Indemnified Party shall provide prompt written notice to Buyer shall, within ten (10) days, notify the Company and Principal Members or the Equity HoldersPurchaser, whichever is as the appropriate indemnifying Party hereunder parties (the “Indemnifying Party”"INDEMNIFYING PARTY"), of such complaint or of the commencement of such action or proceeding; providedPROVIDED, howeverHOWEVER, that the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from liability for such claim arising otherwise than under this Agreement and such failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available prejudice to the Indemnifying Party with respect to such claim or (ii) material prejudice rights and defenses otherwise available to the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty twenty (3020) days thereafter, to assume the defense of such Third Party Claimaction or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If In the event, however, that the Indemnifying Party declines or fails to assume the defense of such Third Party Claim the action or proceeding or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such thirty (30) 20-day period, however, the then such Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if action or proceeding and the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will shall pay the reasonable fees and disbursements of such counsel as incurred; providedPROVIDED, howeverHOWEVER, that the Indemnifying Party will shall not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claimaction or proceeding. In any Third Party Claim action or Misclassification Claim proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter litigation and to retain its own counsel at such Party’s party's own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any matter action the defense of which they are maintaining it is maintaining, and to cooperate in good faith with each other with respect to the defense of any such matteraction.
(cb) Subject to the provisions contained in Schedule 10.1(a)(iv), no No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunderhereunder without the prior written consent of the Indemnifying Party, includingunless such settlement, but not limited to, with respect to Indemnified Misclassification Claimscompromise or consent includes an unconditional release of the Indemnifying Party from all liability arising out of such claim. An Indemnifying Party may not, without the prior written consent of the Indemnified Party, settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder unless (i) the Indemnifying Party which shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness thereof; (ii) the terms or effect of the settlement shall not be unreasonably withheld, conditioned or delayed (it being acknowledged that encumber any settlement which is generally consistent with amounts of prior settlements the assets of Misclassification Claims by the Company any Indemnified Party or any Company Subsidiary affiliate thereof, or contain or result in any restriction, interference or condition that would apply to such Indemnified Party or its affiliates or to the conduct of any of their respective businesses; and (iii) the Indemnifying Party shall obtain, as a condition of such settlement, a complete unconditional release of each Indemnified Party.
(c) Any party granted the right to direct the defense of any action or proceeding under this Section 9.3 hereunder shall (1) keep the other parties fully informed of material developments in the action or proceeding, (2) promptly submit to the other parties copies of all pleadings, responsive pleadings, motions and other similar legal documents and papers received in connection with the action or proceeding, (3) permit the other parties and their counsel, to the extent practicable, to confer on the conduct of the defense of the action or proceeding, and (4) to the extent practicable, permit the other parties and their counsel an opportunity to review all legal papers to be deemed reasonable)submitted prior to their submission. The parties shall make available to each other and each other's counsel and accountants all of their books and records relating to the action or proceeding, and each party shall render to the other such assistance as may be reasonably required in order to insure the proper and adequate defense of the action or proceeding. The parties shall use their respective good faith efforts to avoid the waiver of any privilege of another party. The assumption of the defense of any action or proceeding by an Indemnifying Party shall not constitute an admission of responsibility to indemnify or in any manner impair or restrict the Indemnifying Party's rights to later seek to be reimbursed its costs and expenses if indemnification under this Agreement with respect to the action or proceeding was not required. An Indemnifying Party may elect to assume the defense of an action or proceeding at any time during the pendency of the action or proceeding, even if initially the Indemnifying Party did not elect to assume the defense, so long as the assumption at such later time would not materially prejudice the rights of the Indemnified Party.
(d) If In the event an Indemnified Party claims shall claim a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification ClaimAgreement, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation or otherwise) and, within five (5) Business Days business days of either the consensual resolution of the claim by the Indemnified Party and Indemnifying Party or, if no such resolution occurs, the final non-appealable determination of the merits and amount of such claimclaim by a court of competent jurisdiction, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in the Indemnified Party immediately available funds in an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h).
Appears in 1 contract
Sources: Asset Purchase Agreement (Return on Investment Corp)
Indemnification Procedure. (a) The Buyer shall have In the event of any claims of Indemnification under this Agreement, the party claiming the right to control and defend, with counsel Indemnification (the "Indemnified Party") shall notify the party against whom Indemnification is sought (the "Indemnifying Party") of its choosing such claim within a commercially reasonably acceptable time not to exceed thirty (30) days following receipt of actual knowledge by the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt by an Indemnified Party of notice from a third party of a threatened or filed complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to facts upon which such Indemnified Party may be entitled to indemnification hereunderclaim is based. Thereafter:
11.5.1 If the basis of such claim is a legal, such Indemnified Party shall provide prompt written notice to Buyer governmental, or the Equity Holdersadministrative proceeding, whichever is the appropriate indemnifying Party hereunder (the “Indemnifying Party”); provided, however, that the failure to so notify the Indemnifying Party shall relieve may, at its option and expense, defend any such proceeding if the proceeding could give rise to an Indemnification obligation hereunder. If the Indemnifying Party from liability under this Agreement with respect elects to such claim only ifdefend any proceeding, and only to the extent that, such failure to it shall notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty (30) days thereafter, to assume of the defense delivery of notice of such Third Party Claimclaim of such election, including acknowledge its obligation to provide the employment Indemnification and shall have full control over the conduct of counsel reasonably satisfactory to such proceeding, although the Indemnified Party (shall have the right to retain legal counsel at its own expense and Buyer hereby acknowledges shall have the right to approve any settlement of any dispute giving rise to such proceeding, provided that King & Spalding LLP shall such approval may not be satisfactory to the unreasonably withheld. The Indemnified Party if Buyer is shall reasonably cooperate with the Indemnified Party) and the payment of the fees and disbursements of Indemnifying Party in such counselproceeding. If the Indemnifying Party declines or fails to assume the defense of does not provide such Third Party Claim notice and acknowledgement within such thirty (30) day period, however, the Indemnified Party may employ counsel shall be free to represent pay, compromise or defend it in any such Third Party Claim and, if claim following fifteen (15) days prior notice thereof to the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from and may pursue against the Indemnifying Party for the Loss any remedies available in question, the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claim. In any Third Party Claim law or Misclassification Claim with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter and to retain its own counsel at such Party’s own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of any matter the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.
(c) Subject to the provisions contained in Schedule 10.1(a)(iv), no Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunderequity, including, but not limited to, with respect rights to Indemnified Misclassification Claimsoffset, without if applicable, as described in Section 11.6 below.
11.5.2 If the prior written consent basis of such claim is not a legal, governmental, administrative proceeding, the Indemnifying Party which shall not be unreasonably withheld, conditioned or delayed have thirty (it being acknowledged that any settlement which is generally consistent with amounts of prior settlements of Misclassification Claims by the Company or any Company Subsidiary shall be deemed reasonable).
(d30) If an Indemnified Party claims a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification Claim, such Indemnified Party shall send written days after receiving notice of such claim from the Indemnified Party to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail cure the basis for such claim. As promptly Except as possible after otherwise provided in this Section 11.5.2 below, if the Indemnifying Party has not cured the basis for such claim within such time, the Indemnified Party has given such notice, such Indemnified Party and shall be free to resolve the appropriate Indemnifying Party shall establish the merits and amount of basis for such claim (by mutual agreementnegotiation, litigation settlement, payment or otherwise) andand may pursue against the Indemnifying Party any remedies available in law or equity, including, but not limited to, rights to offset, if applicable, as described in Section 11.6 below. Notwithstanding the foregoing, however, in the event the Indemnifying Party, within five (5) Business Days such time, commences and pursues, in good faith, any contest or other course of action reasonably intended to resolve the basis for such claim which cannot be concluded within such time for any reason other than delay on the part of the final determination Indemnifying Party then, in such event, and provided the Indemnified Party is not hereby prejudiced, such time period shall be deemed extended to the extent reasonably necessary under the circumstances for the Indemnifying Party to cure the basis for such claim.
11.5.3 Notwithstanding any statement to the contrary contained herein, in the event any party has a claim of Indemnification against ▇▇▇▇▇▇▇▇▇ hereunder which falls within the Threshold Amount, ▇▇▇▇▇▇▇▇▇ shall be entitled to notice thereof in accordance with this Section 11.5 from such party.
11.5.4 The Indemnifying Party may object to any claim of Indemnification by notice of timely objection to the Indemnified Party given within thirty (30) days of the merits and amount Indemnified Party's notice of such claim. If such objection is timely made, and the parties are unable to resolve the same by mutual agreement within ten (i10) if the Indemnifying Party is an Equity Holder(s)days thereafter, such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicablethen, the Sellers’ Representative (on behalf of the Equity Holders) matter shall cause the Escrow Agent to, pay to Buyer in immediately available funds an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders be resolved by arbitration in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h)the American Arbitration Association Rules of Commercial Arbitration, in Minneapolis, Minnesota, upon demand of either party.
Appears in 1 contract
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt by an RSL Indemnified Party or a Sprint LP Indemnified Party (hereinafter collectively referred to as an "Indemnified Party") of notice from by a third party of a threatened or filed any complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party indemnification is being or may be entitled to indemnification sought hereunder, such Indemnified Party shall provide prompt written notice to Buyer notify RSL or the Equity HoldersSprint LP, whichever is the appropriate indemnifying Party hereunder (the “"Indemnifying Party”"), of such complaint or of the commencement of such action or proceeding; provided, however, that the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from liability for such claim arising otherwise than under this Agreement and such failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability which the Indemnifying Party may have hereunder with respect to such claim if, but only if, and only to the extent that, such failure to notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty (30) days thereafterParty, to assume the defense of such Third Party Claimaction or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the reasonable fees and disbursements of such counsel. If In the event, however, that the Indemnifying Party declines or fails to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory to the Indemnified Party,in either case in a timely manner, then such Third Party Claim within such thirty (30) day period, however, the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if action or proceeding and the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will shall not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claimaction or proceeding. In any Third Party Claim action or Misclassification Claim proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter litigation and to retain its own counsel at such Party’s 's own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any matter action the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matteraction.
(cb) Subject to the provisions contained in Schedule 10.1(a)(iv), no No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunderhereunder without the prior written consent of the Indemnifying Party, includingunless such settlement, but not limited to, with respect to Indemnified Misclassification Claimscompromise or consent includes an unconditional release of the Indemnifying Party from all liability arising out of such claim. An Indemnifying Party may not, without the prior written consent of the Indemnifying Indemnified Party, settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder unless such settlement, compromise or consent includes an unconditional release of the Indemnified Party from all liability arising out of such claim and does not contain any equitable order, judgment or term which shall not be unreasonably withheldin any manner affects, conditioned restrains or delayed (it being acknowledged that any settlement which is generally consistent interferes with amounts the business of prior settlements of Misclassification Claims by the Company Indemnified Party or any Company Subsidiary shall be deemed reasonable)of the Indemnified Party's respective affiliates.
(dc) If In the event an Indemnified Party claims shall claim a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification ClaimAgreement, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation litigation, arbitration or otherwise) and, within five (5) Business Days business days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject shall deliver to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in Indemnified Party immediately available funds in an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h).
Appears in 1 contract
Sources: Transition Services Agreement (RSL Communications PLC)
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt by an a Buyer Indemnified Party or a Seller Indemnified Party (hereinafter collectively referred to as an "Indemnified Party") of written notice from by a third party of a threatened or filed complaint claim or of the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification hereunderreceive payment from the other party or parties (the "Indemnifying Party") for any Buyer Losses or Seller Losses (as the case may be), such Indemnified Party shall provide prompt notify the Indemnifying Party within 30 days after the date on which it received such written notice to Buyer or the Equity Holders, whichever is the appropriate indemnifying Party hereunder (the “Indemnifying Party”)notice; provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to actually prejudices the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty (30) 30 days thereafter, to assume the defense of such Third Party Claimaction or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If the Indemnifying Party declines or fails to assume the defense of such Third Party Claim within such thirty (30) day period, however, the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claim. In any Third Party Claim action or Misclassification Claim proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming controlling the defense of such action, shall have the right to participate in such matter litigation and to retain its own counsel at such Party’s party's own expense. The Indemnifying Party or the Indemnified Party, as whichever is controlling the case may bedefense of any action, shall at all times use reasonable efforts to keep the Indemnifying Party other party or the Indemnified Party, parties (as the case may be, applicable) reasonably apprised of the status of any matter the defense of which they are maintaining such action and to cooperate in good faith with each the other party or parties (as applicable) with respect to the defense of any such matteraction.
(cb) Subject to the provisions contained in Schedule 10.1(a)(iv), no No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being may be sought hereunder, including, but not limited to, with respect to Indemnified Misclassification Claimshereunder without the prior written consent of the Indemnifying Party. An Indemnifying Party may not, without the prior written consent of the Indemnified Party, settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder unless (i) simultaneously with the effectiveness of such settlement, compromise or consent, the Indemnifying Party pays in full any obligation imposed on the Indemnified Party by such settlement, compromise or consent, which shall releases the Indemnified Party completely in connection with such settlement, compromise or consent and (ii) such settlement, compromise or consent does not be unreasonably withheldcontain any equitable order, conditioned judgment or delayed (it being acknowledged that term which in any settlement which is generally consistent manner affects, restrains or interferes with amounts the business of prior settlements of Misclassification Claims by the Company Indemnified Party or any Company Subsidiary shall be deemed reasonable)of the Indemnified Party's Affiliates.
(dc) If In the event an Indemnified Party claims shall claim a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification Claimthird party claim covered by Section 9.3(a) of this Agreement, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation or otherwise) and, within five (5) Business Days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in immediately available funds an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h).
Appears in 1 contract
Indemnification Procedure. (ai) The Buyer Person seeking indemnification under this Section 6.3 (the “Indemnified Party”) shall have the right to control and defend, with counsel of its choosing reasonably acceptable give to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(bparty(ies) Promptly after receipt by an Indemnified Party of notice from a third party of a threatened or filed complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to whom indemnification hereunder, such Indemnified Party shall provide prompt written notice to Buyer or the Equity Holders, whichever is the appropriate indemnifying Party hereunder sought (the “Indemnifying Party”) prompt written notice (in the case of indemnification under Section 6.3(a), such notice shall be given to the Stockholders’ Agent and Scripps) of any third-party claim which may give rise to any indemnity obligation under this Section 6.3, and the Indemnifying Party will have the right to assume the defense of any such claim through counsel of its own choosing, by so notifying the Indemnified Party within ten (10) days of receipt of the Indemnified Party’s written notice; provided, however, that such counsel shall be reasonably satisfactory to the Indemnified Party. Failure of the Indemnified Party to give prompt notice shall not affect the Indemnifying Party’s indemnification obligations hereunder except to the extent the Indemnifying Party is materially prejudiced by such failure. If the Indemnified Party desires to participate in any such defense assumed by the Indemnifying Party, it may do so at its sole cost and expense; provided, however, that the failure Indemnified Party will be entitled to so notify participate in any such defense with separate counsel at the expense of the Indemnifying Party shall relieve if, in the reasonable judgment of counsel to the Indemnified Party, a conflict or potential conflict exists, or there are separate or additional defenses available to the Indemnified Party, that would make such separate representation advisable. If the Indemnifying Party from liability under this Agreement with respect declines to assume any such claim only ifdefense or fails to diligently pursue any such defense, and only to the extent that, such failure to notify then the Indemnifying Party results in (i) the forfeiture will be liable for all reasonable costs and expenses incurred by the Indemnifying Indemnified Party in connection with investigating, defending, settling and/or otherwise dealing with such claim, including reasonable fees and disbursements of material rights and defenses otherwise available counsel. The parties hereto agree to cooperate with each other in connection with the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to defense of any such claim. The Indemnifying Party shall have will not, without the right, upon prior written notice delivered to the Indemnified Party within thirty (30) days thereafter, to assume the defense consent of such Third Party Claim, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If the Indemnifying Party declines or fails to assume the defense of such Third Party Claim within such thirty (30) day period, however, the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claim. In any Third Party Claim or Misclassification Claim with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter and to retain its own counsel at such Party’s own expense. The Indemnifying Party or the Indemnified Party, as the case may besettle, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Partycompromise, as the case may be, reasonably apprised of the status of any matter the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.
(c) Subject to the provisions contained in Schedule 10.1(a)(iv), no Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunderany such claim, includingunless such settlement, but compromise or judgment (A) does not limited toresult in the imposition of a consent order, with respect to injunction or decree that would restrict the future activity or conduct of the Indemnified Misclassification ClaimsParty or any Affiliate thereof, (B) does not involve any remedies other than monetary damages, and (C) includes an unconditional release of the Indemnified Party and its Affiliates for all liability arising out of such claim and any related claim. The Indemnified Party will not, without the prior written consent of the Indemnifying Party Party, which shall will not be unreasonably withheld, conditioned delayed or delayed (it being acknowledged that conditioned, settle, compromise, or consent to the entry of any settlement which is generally consistent judgment with amounts of prior settlements of Misclassification Claims by the Company or respect to any Company Subsidiary shall be deemed reasonable)such claim.
(dii) If an indemnification claim by any Indemnified Party claims a right to payment pursuant to this Agreement is not involving a Third disputed by the Indemnifying Party Claim or a Misclassification Claim, such Indemnified Party shall send within thirty (30) days after the Indemnifying Party’s having received written notice thereof, or has been resolved by a Law of such a Governmental Entity, by a settlement of the indemnification claim to in accordance with Section 6.3(c)(i) or by agreement of the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish (any of the merits and foregoing, a “Resolution”), then (A) in the case of indemnification under Section 6.3(b), the Buyer will pay to the Stockholder Indemnified Party promptly following such Resolution an amount in cash equal to the Losses of such claim Stockholder Indemnified Party as set forth in such Resolution, or (by mutual agreementB) in the case of indemnification under Section 6.3(a), litigation or otherwise) and, within five (5) Business Days of the final determination of the merits and amount Buyer will deliver evidence of such claimResolution to Scripps and the Stockholders’ Agent, (i) if whereupon the Indemnifying Stockholders’ Agent will deliver to the Buyer Indemnified Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in immediately available funds an amount equal to the Losses of such claim Buyer Indemnified Party as determined hereunderset forth in such Resolution. At the election of the Stockholders’ Agent, and (ii) if only with the Indemnifying Party is the Buyerconsent of Scripps, the amount to be delivered to the Buyer Indemnified Party in accordance with the immediately preceding sentence may be deducted from the Six-Month Stock Issuance, Annual Cash/Stock Payments or Performance Payments (if and only to the extent such amount has been earned) on a pro rata basis among the Stockholders determined in accordance with the allocation set forth in Section 1.2(b) of the Company Disclosure Schedule. In addition, at the election of the Stockholders’ Agent, and only with the consent of Scripps, the amount to be delivered to the Buyer Indemnified Party may be partially or fully satisfied out of any cash or Buyer Common Stock received by the Stockholders. If the Stockholders’ Agent elects to indemnify the Buyer using Buyer Common Stock previously issued to it, the value of the Buyer Common Stock shall pay to be (A) the Sellers’ Representative value determined under Section 1.1(g) if the Buyer Common Stock was issued more than twelve (on behalf of 12) months prior to the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds stock return date, and (B) the Company (on behalf value as of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage date of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute issuance to the Option Holders in accordance Stockholders with their respective Pro Rata Percentages and subject respect to Section 2.8(h)the Six-Month Stock Issuance, Annual Cash/Stock Payments or Performance Payments, as the case may be, if the Buyer Common Stock was issued less than twelve (12) months prior to the stock return date.
Appears in 1 contract
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after Upon receipt by the Party seeking indemnification hereunder (an “Indemnified Party Party”) of notice from a third party of a threatened or filed complaint or the threatened or actual commencement of any auditaction, investigationsuit, action proceeding, claim, demand or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which assessment against such Indemnified Party may be entitled which might give rise to indemnification hereunderDamages, such the Indemnified Party shall provide give prompt written notice thereof to Buyer or the Equity Holders, whichever Party from which indemnification is the appropriate indemnifying Party hereunder sought (the “Indemnifying Party”); provided) indicating the nature of the claim and the basis therefore, however, provided that the failure to so notify the Indemnifying Party give such prompt notice shall not relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only of its obligations hereunder except to the extent that, such failure to notify the Indemnifying Party results in (i) or the forfeiture by the Indemnifying Party defense of material rights and defenses otherwise available to the Indemnifying Party with respect to any such claim or (ii) material prejudice to the Indemnifying Party with respect to such claimis materially prejudiced thereby. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty (30) days thereafterat its option, to assume the defense of, at its own Cost and by its own counsel, any such claim involving the asserted liability of the Indemnified Party. If any Indemnifying Party shall undertake to compromise or defend any such Third Party Claimasserted liability, including the employment of counsel reasonably satisfactory to it shall promptly notify the Indemnified Party (of its intention to do so, and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If shall agree to cooperate fully with the Indemnifying Party declines and its counsel in the compromise of, or fails to assume the defense of such Third Party Claim within such thirty (30) day periodagainst, however, the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurredasserted liability; provided, however, that the Indemnifying Party will shall not, as part of any settlement or other compromise, (i) admit to liability for which the Indemnifying Party is not be required fully indemnifying the Indemnified Party, or agree to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claim. In any Third Party Claim an injunction or Misclassification Claim other relief with respect to which indemnification is being sought hereunder, activities of the Indemnified Party without the written consent of the Indemnified Party or otherwise adversely affect the Indemnifying Partybusiness of the Indemnified Party in any manner, whichever is not assuming admit to any violation of any Applicable Laws or any violation of the defense rights of such actionany Person, shall have the right to participate in such matter and to retain its own counsel at such Party’s own expense. The Indemnifying Party or adversely affect the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep ’s rights under this Agreement. Notwithstanding an election by the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of any matter the defense of which they are maintaining and to cooperate in good faith with each other with respect to assume the defense of any such matter.
(c) Subject to the provisions contained in Schedule 10.1(a)(iv), no Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder, including, but not limited to, with respect to Indemnified Misclassification Claims, without the prior written consent of the Indemnifying Party which shall not be unreasonably withheld, conditioned or delayed (it being acknowledged that any settlement which is generally consistent with amounts of prior settlements of Misclassification Claims by the Company or any Company Subsidiary shall be deemed reasonable).
(d) If an Indemnified Party claims a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification Claimas set forth above, such Indemnified Party shall send written notice of such claim to have the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim right (by mutual agreement, litigation or otherwise) and, within five (5) Business Days of the final determination of the merits and amount of such claim, (i) at its own Cost if the Indemnifying Party is an Equity Holder(s), has elected to assume such Equity Holder(sdefense) shall, subject to Sections 10.5 employ separate counsel and 10.6 or, as applicable, to participate in the Sellers’ Representative (on behalf defense of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in immediately available funds an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h)any claim.
Appears in 1 contract
Sources: Supply Agreement (Durect Corp)
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt by an indemnified party under this Article 8 (hereinafter referred to as an “Indemnified Party Party”) of notice from by a third party (including any Governmental Authority) of a threatened or filed any complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) Proceeding with respect to which such Indemnified Party may be entitled to indemnification hereunderreceive payment for any Buyer Losses or Green Plains Losses (as the case may be) (a “Third Party Claim”), such Indemnified Party shall provide prompt written notice to Buyer or will notify the Equity Holders, whichever is the appropriate indemnifying other Party hereunder (the “Indemnifying Party”), promptly following the Indemnified Party’s receipt of such complaint or of notice of the commencement of such Proceeding; provided, however, that the failure to so notify the Indemnifying Party shall will relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claim. Party.
(b) The Indemnifying Party shall will have the right, upon written notice delivered to the Indemnified Party within thirty twenty (3020) days thereafter, to accept full responsibility (subject to the limitations set forth in Sections 8.4, 8.5, and 8.6) for any Buyer Losses or Green Plains Losses (as the case may be) resulting from a Third Party Claim, and to assume the defense of such a Third Party Claim, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the fees and disbursements of such counsel. If In the event, however, that the Indemnifying Party declines or fails to assume the defense of such the Third Party Claim on the terms provided above or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such thirty twenty (3020) day period, however, the then such Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, and the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurredincurred (subject to the limitations set forth in Section 8.5); provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one (1) counsel for all Indemnified Parties in any jurisdiction in any single Third Party ClaimProceeding. In any Third Party Claim or Misclassification Claim Proceeding with respect to which indemnification is being sought 49 hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall will have the right to participate in such matter and to retain its own counsel at such Party’s own expense. .
(c) The Indemnifying Party or the Indemnified Party, as the case may be, shall will at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any matter the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.
(c) Subject to the provisions contained in Schedule 10.1(a)(iv), no . No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder, including, but not limited to, with respect to Indemnified Misclassification Claimshereunder without the prior written consent of the Indemnifying Party. An Indemnifying Party may not, without the prior written consent of the Indemnifying Indemnified Party, settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder unless (i) such settlement, compromise or consent includes an unconditional release of the Indemnified Party from all Liability arising out of such claim, (ii) does not contain any admission or statement suggesting any wrongdoing or Liability on behalf of the Indemnified Party and (iii) does not contain any equitable order, judgment or term which shall not be unreasonably withheldin any manner affects, conditioned restrains or delayed (it being acknowledged that any settlement which is generally consistent interferes with amounts the business of prior settlements of Misclassification Claims by the Company Indemnified Party or any Company Subsidiary shall be deemed reasonable)of the Indemnified Party’s Affiliates.
(d) If In the event an Indemnified Party claims a right to payment pursuant to this Agreement not involving Agreement, other than for a Third Party Claim or a Misclassification Claimpursuant to Section 8.3(a), such Indemnified Party shall will send written notice of such claim to the appropriate Indemnifying Party. Such notice shall will specify in reasonable detail the facts constituting the basis for such claimclaim and the amount, to the extent known, of the claim asserted. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall will establish the merits and amount of such claim (by mutual agreement, litigation agreement or otherwise) and, within mediation. If the Indemnified Party and the appropriate Indemnifying Party fail to establish the merits and amount by way of mutual agreement or mediation they will establish the merits and amount by way of arbitration as provided in Section 9.9. Within five (5) Business Days business days of the final determination of the merits and amount of such claim, (i) if and the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, will pay to Buyer in the Indemnified Party (or to such other Person as the Indemnified Party directs) immediately available funds in an amount amount, if any, equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h).
Appears in 1 contract
Indemnification Procedure. (a) The Buyer shall have the right to control and defend, with counsel of its choosing reasonably acceptable to the Sellers’ Representative, all claims, actions, suits, proceedings, arbitrations, mediations, audits, investigations or reviews that relate to Indemnified Misclassification Claims.
(b) Promptly after receipt by an RSL Indemnified Party or a Sprint LP Indemnified Party (hereinafter collectively referred to as an "Indemnified Party") of notice from by a third party of a threatened or filed any complaint or the threatened or actual commencement of any audit, investigation, action or proceeding other than a Misclassification Claim (a “Third Party Claim”) with respect to which such Indemnified Party indemnification is being or may be entitled to indemnification sought hereunder, such Indemnified Party shall provide prompt written notice to Buyer notify RSL or the Equity HoldersSprint LP, whichever is the appropriate indemnifying Party hereunder (the “"Indemnifying Party”"), of such complaint or of the commencement of such action or proceeding; provided, however, that the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from liability for such claim arising otherwise than under this Agreement and such failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability which the Indemnifying Party may have hereunder with respect to such claim if, but only if, and only to the extent that, such failure to notify the Indemnifying Party results in (i) the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (ii) material prejudice to the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within thirty (30) days thereafterParty, to assume the defense of such Third Party Claimaction or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party (and Buyer hereby acknowledges that King & Spalding LLP shall be satisfactory to the Indemnified Party if Buyer is the Indemnified Party) and the payment of the reasonable fees and disbursements of such counsel. If In the event, however, that the Indemnifying Party declines or fails to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory to the Indemnified Party, in either case in a timely manner, then such Third Party Claim within such thirty (30) day period, however, the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if action or proceeding and the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will shall not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claimaction or proceeding. In any Third Party Claim action or Misclassification Claim proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter litigation and to retain its own counsel at such Party’s 's own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any matter action the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matteraction.
(cb) Subject to the provisions contained in Schedule 10.1(a)(iv), no No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunderhereunder without the prior written consent of the Indemnifying Party, includingunless such settlement, but not limited to, with respect to Indemnified Misclassification Claimscompromise or consent includes an unconditional release of the Indemnifying Party from all liability arising out of such claim. An Indemnifying Party may not, without the prior written consent of the Indemnifying Indemnified Party, settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder unless such settlement, compromise or consent includes an unconditional release of the Indemnified Party from all liability arising out of such claim and does not contain any equitable order, judgment or term which shall not be unreasonably withheldin any manner affects, conditioned restrains or delayed (it being acknowledged that any settlement which is generally consistent interferes with amounts the business of prior settlements of Misclassification Claims by the Company Indemnified Party or any Company Subsidiary shall be deemed reasonable)of the Indemnified Party's respective affiliates.
(dc) If In the event an Indemnified Party claims shall claim a right to payment pursuant to this Agreement not involving a Third Party Claim or a Misclassification ClaimAgreement, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation litigation, arbitration or otherwise) and, within five (5) Business Days business days of the final determination of the merits and amount of such claim, (i) if the Indemnifying Party is an Equity Holder(s), such Equity Holder(s) shall, subject shall deliver to Sections 10.5 and 10.6 or, as applicable, the Sellers’ Representative (on behalf of the Equity Holders) shall cause the Escrow Agent to, pay to Buyer in Indemnified Party immediately available funds in an amount equal to such claim as determined hereunder, and (ii) if the Indemnifying Party is the Buyer, the Buyer shall pay to (A) the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) an amount equal to such Stockholders’ and Warrant Holder’s Pro Rata Percentage of such claim as determined hereunder in immediately available funds and (B) the Company (on behalf of the Option Holders) an amount equal to such Option Holders’ Pro Rata Percentage of such claim as determined hereunder in immediately available funds, which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h).
Appears in 1 contract
Sources: Transition Services Agreement (RSL Communications PLC)