Matters Involving Third Parties. (a) If any third party shall notify an Indemnified Party with respect to any matter (a “Third Party Claim”) which may give rise to a claim for indemnification against the Indemnifying Parties under this Article 8, then the Indemnified Party shall promptly notify the Indemnifying Parties (the Representative, if the Securityholders are the Indemnifying Parties) thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Parties shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is prejudiced thereby. (b) The Indemnifying Parties will have the right, at their sole cost and expense, to defend the Indemnified Party against the Third Party Claim with counsel of the Indemnifying Parties’ choice, reasonably satisfactory to the Indemnified Party, so long as (i) the Indemnifying Parties notify the Indemnified Party, within ten (10) days after the Indemnified Party has given notice of the Third Party Claim to the Indemnifying Parties that the Indemnifying Parties are assuming the defense of such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in accordance with the terms and limitations of this Article 8 (but excluding, for this purpose Section 8.2(c) and (ii) the Indemnifying Parties conduct the defense of the Third Party Claim in an active and diligent manner. In the event that the Indemnifying Parties fail to assume the defense or settlement of any Third Party Claim within ten (10) days after notice thereof is given by the Indemnified Party, or fail to conduct the defense in an active and diligent manner, the Indemnified Party shall have the right to undertake the defense, appeal or settlement of such Third Party Claim at the expense and for the account of the Indemnifying Party. (c) So long as the conditions set forth in Section 8.5(b) are and remain satisfied, then (i) the Indemnifying Parties may conduct the defense of the Third Party Claim in accordance with Section 8.5(b), (ii) the Indemnified Parties may retain separate co counsel at their sole cost and expense and (iii) the Indemnifying Parties will not, without the prior written consent of the Indemnified Parties (which consent shall not be unreasonably withheld or delayed), consent to any admission or the entry of any judgment with respect to the matter, or enter into any settlement which (A) imposes an injunction or other equitable relief upon the Indemnified Party, (B) does not include an unconditional provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all liability with respect thereto or (C) in the reasonable opinion of the Indemnified Party, could have a material adverse effect on its reputation, business, operations, assets, or financial condition. (d) Notwithstanding the foregoing, if (i) an Indemnified Party determines in good faith that there is a reasonable probability that an action may materially and adversely affect it or its Affiliates other than as a result of monetary damages, (ii) the Indemnifying Party shall not have (A) assumed the defense of the Third Party Claim, (B) conducted the defense in an active and diligent manner, or (C) employed counsel reasonably satisfactory to the Indemnified Party to have charge of such third party action, (iii) the Indemnified Party shall have reasonably concluded that there may be defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party, or (iv) the Indemnified Party’s counsel shall have advised the Indemnified Party in writing, with a copy delivered to the Indemnifying Party, that there is a material conflict of interest that could violate applicable standards of professional conduct to have common counsel, then, in each case, such Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise or settle such action, but the Indemnifying Party shall have no liability with respect to a compromise or settlement with respect to such Third Party Claim entered into without its consent (which shall not be unreasonably withheld, conditioned or delayed).
Appears in 1 contract
Sources: Merger Agreement (Jl Halsey Corp)
Matters Involving Third Parties. (a) 8.4.1. If any third party shall notify an any Party (the "Indemnified Party Party") with respect to any matter (a “"Third Party Claim”") which may give rise to a claim for indemnification against any other Party (the "Indemnifying Parties Party") under this Article section 8, then the Indemnified Party shall promptly (and in any event within five business days after receiving notice of the Third Party Claim) notify the each Indemnifying Parties (the Representative, if the Securityholders are the Indemnifying Parties) Party thereof in writing; provided that the failure to give such notice as provided herein shall not relieve the applicable Indemnifying Party of its obligations under this section 8.4, except to the extent that such Indemnifying Party is materially prejudiced by such failure to give notice.
8.4.2. Any Indemnifying Party shall have the right at any time to assume and conduct the defense of a Third Party Claim with counsel of its choice at such Indemnifying Party's own expense; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Parties shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is prejudiced thereby.
(b) The Indemnifying Parties will have the right, at their sole cost and expense, to defend the Indemnified Party against the Third Party Claim with counsel of the Indemnifying Parties’ choice, reasonably satisfactory to the Indemnified Party, so long as (i) the Indemnifying Parties notify the Indemnified Party, within ten (10) days after the Indemnified Party has given notice of the Third Party Claim to the Indemnifying Parties that the Indemnifying Parties are assuming the defense of such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in accordance with the terms and limitations of this Article 8 (but excluding, for this purpose Section 8.2(c) and (ii) the Indemnifying Parties conduct the defense of the Third Party Claim in an active and diligent manner. In the event that the Indemnifying Parties fail to assume the defense or settlement of any Third Party Claim within ten (10) days after notice thereof is given by the Indemnified Party, or fail to conduct the defense in an active and diligent manner, the Indemnified Party shall have the right to undertake employ one separate counsel reasonably satisfactory to the defense, appeal or settlement of Indemnifying Party to represent such Indemnified Party if the defendants in any such Third Party Claim at include both the expense Indemnifying Party (or its Affiliates or their respective officers, directors, partners, members, employees, agents, representatives, successors and for assigns) and the account Indemnified Party and, in such party's reasonable judgment, a conflict of interest between such party and the Indemnifying Party exists in respect of such claim. In such event, the reasonable fees and expenses of such separate counsel shall also be paid by the Indemnifying Party.
(c) So long as the conditions set forth in Section 8.5(b) are 8.4.3. Unless and remain satisfied, then (i) the until an Indemnifying Parties may conduct Party assumes the defense of the Third Party Claim as provided in accordance with Section 8.5(b)section 8.4.2 above, (ii) however, the Indemnified Parties Party may retain separate co counsel at their sole cost and expense and (iii) defend against the Third Party Claim in any reasonable manner.
8.4.4. Neither the Indemnified Party nor the Indemnifying Parties will notParty may admit any liability, consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnified Parties (which consent shall not be unreasonably withheld Indemnifying Party or delayed), consent to any admission or the entry of any judgment with respect to the matter, or enter into any settlement which (A) imposes an injunction or other equitable relief upon the Indemnified Party, (B) does respectively, not include an unconditional provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all liability with respect thereto or (C) in the reasonable opinion of the Indemnified Party, could have a material adverse effect on its reputation, business, operations, assets, or financial conditionto be withheld unreasonably.
(d) Notwithstanding the foregoing, if (i) an Indemnified Party determines in good faith that there is a reasonable probability that an action may materially and adversely affect it or its Affiliates other than as a result of monetary damages, (ii) the Indemnifying Party shall not have (A) assumed the defense of the Third Party Claim, (B) conducted the defense in an active and diligent manner, or (C) employed counsel reasonably satisfactory to the Indemnified Party to have charge of such third party action, (iii) the Indemnified Party shall have reasonably concluded that there may be defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party, or (iv) the Indemnified Party’s counsel shall have advised the Indemnified Party in writing, with a copy delivered to the Indemnifying Party, that there is a material conflict of interest that could violate applicable standards of professional conduct to have common counsel, then, in each case, such Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise or settle such action, but the Indemnifying Party shall have no liability with respect to a compromise or settlement with respect to such Third Party Claim entered into without its consent (which shall not be unreasonably withheld, conditioned or delayed).
Appears in 1 contract
Matters Involving Third Parties. (a) If any third party shall notify an notifies any party (the "Indemnified Party Party") with respect to any matter (a “"Third Party Claim”") which may give rise to a claim for indemnification against the other party (the "Indemnifying Parties Party") under this Article 8Section 12, then the Indemnified Party shall shall, if a claim in respect thereof is to be made under this Section 12, promptly (and in any event within fifteen business days after receiving notice of the Third Party Claim) notify the Indemnifying Parties (the Representative, if the Securityholders are the Indemnifying Parties) Party thereof in writingwriting (a "Third Party Claim Notice"); provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Parties failure to make timely notice shall not relieve the Indemnifying Party from any obligation hereunder unless (and then solely of its obligations under this Section 12 except to the extentextent the Indemnifying Party is damaged by such failure. The Third Party Claim Notice shall include a description of the Third Party Claim and copies of all documents evidencing the claim that have been received by the Indemnified Party. The Indemnifying Party will have twenty (20) days from receipt of such Third Party Claim Notice to determine whether or not (i) the Indemnifying Party will, at its sole cost and expense, defend against such Third Party Claim and/or (ii) the Indemnifying Party is prejudiced therebydisputing the claim for indemnity hereunder.
(b) The If, by 5:00 p.m., Pacific time on the last day of the twenty (20) day period set forth in Section 12.3(a), the Indemnifying Parties will have the right, at their sole cost and expense, Party (i) does not respond to defend the Indemnified Party against the Third Party Claim with counsel of the Indemnifying Parties’ choiceNotice, reasonably satisfactory (ii) responds to the Indemnified Party, so long as (i) the Indemnifying Parties notify the Indemnified Party, within ten (10) days after the Indemnified Party has given notice of the Third Party Claim Notice, but disputes the claim for indemnity hereunder and elects not to assume the Indemnifying Parties that the Indemnifying Parties are assuming the defense of such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in accordance with the terms and limitations of this Article 8 defense, or (but excluding, for this purpose Section 8.2(ciii) and (ii) the Indemnifying Parties conduct the defense of responds to the Third Party Claim in an active Notice and diligent manner. In does not dispute the event that the Indemnifying Parties fail claim for indemnity but elects not to assume the defense or settlement of any Third Party Claim within ten (10) days after notice thereof is given by the Indemnified Party, or fail to conduct the defense in an active and diligent mannerdefense, the Indemnified Party shall have the right to undertake the defense, appeal or settlement of defend against any such Third Party Claim at by appropriate proceedings or to settle or pay any such Third Party Claim for such an amount as the expense Indemnified Party shall deem reasonably appropriate and for the account of the Indemnifying Party.
(c) So long as Party shall promptly pay all Indemnifiable Losses actually resulting from the conditions set forth in Section 8.5(b) are and remain satisfied, then (i) the Indemnifying Parties may conduct the defense final determination of the Third Party Claim in accordance with Section 8.5(bsubparagraph (e) below; provided, that in the case of clause (ii) of this subparagraph (b), any right of the Indemnified Party to recover from the Indemnifying Party shall depend on the resolution of the dispute as to the right of indemnity
(c) If the Indemnifying Party disputes the right to indemnity, but nevertheless elects to defend against any such Third Party Claim or settle or pay any such Third Party Claim, any right of the Indemnified Party to recover from the Indemnifying Party shall depend on the resolution of the dispute as to the right of indemnity.
(d) Notwithstanding anything herein to the contrary, if the Indemnifying Party notifies the Indemnified Party that it will defend against or settle any Third Party Claim:
(i) such defense or settlement shall be at the sole cost and expense of the Indemnifying Party, except for costs and expenses of the Indemnified Party's counsel, if any, pursuant to items (v) and (vi) below;
(ii) the Indemnified Parties may retain separate co Indemnifying Party and its counsel shall conduct such defense or settlement at their sole cost and expense and all times in good faith;
(iii) the Indemnifying Parties will notParty and its counsel shall, at the reasonable request of the Indemnified Party, provide periodic updates to the Indemnified Party in order to keep the Indemnified Party fully informed as to its conduct of such defense or settlement, and shall not compromise or settle such Third Party Claim without the prior written consent of the Indemnified Parties Party (not to be unreasonably withheld or delayed) unless such settlement or compromise does not subject the Indemnified Party to any monetary liability or injunction or other equitable relief, and includes a complete release of the Indemnified Party from all liability with respect to such Third Party Claim;
(iv) the Indemnified Party shall reasonably cooperate with the Indemnifying Party, including making available to the Indemnifying Party, all relevant witnesses and pertinent documents and information and appropriate personnel;
(v) the Indemnified Party may elect to employ its own counsel and participate in such defense or settlement at the Indemnified Party's sole cost and expense, but the control of such defense and the settlement shall rest with the Indemnifying Party;
(vi) notwithstanding the Indemnifying Party's election to defend against or settle the Third Party Claim, the Indemnified Party may, upon written notice to the Indemnifying Party, elect to employ its own counsel (who shall be reasonably acceptable to the Indemnifying Party) if the Indemnifying Party is also an entity against whom the Third Party Claim is made and the Indemnified Party has been advised by counsel that (x) representation of both parties by the same counsel would be inappropriate under applicable standards of professional conduct or (y) the Indemnified Party has available to it one or more defenses or counterclaims that are inconsistent with, different from, or in addition to one or more of those that may be available to the Indemnifying Party with respect to such Third Party Claim; and
(vii) in no event shall the Indemnified Party consent to the entry of any judgment or enter into any settlement with respect to such Third Party Claim without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld or delayed), consent to any admission or the entry of any judgment with respect .
(e) Subject to the matterother provisions of this Section 12.3, or enter into if the Indemnifying Party:
(i) does not respond to a Third Party Claim Notice by 5:00 p.m., Pacific time on the last day of the twenty (20) day period set forth in Section 12.3(a);
(ii) does not elect to defend against any settlement Third Party Claim for which (A) imposes an injunction or other equitable relief upon it does not dispute the Indemnified Party, 's right to indemnity;
(Biii) does not include an unconditional provision whereby the plaintiff or claimant in the matter releases the Indemnified elect to defend against any Third Party from all liability with respect thereto or (C) in the reasonable opinion of Claim for which it disputes the Indemnified Party's right to indemnity, could have and such dispute is resolved in a material adverse effect on its reputation, business, operations, assets, or financial condition.manner affirming the Indemnified Party's right to indemnity;
(div) Notwithstanding elects to defend against any Third Party Claim for which it does not dispute the foregoingIndemnified Party's right to indemnity hereunder; or
(v) elects to defend against any Third Party Claim for which it does dispute the right to indemnity, if (i) an to the extent the dispute is resolved in a manner affirming the Indemnified Party determines in good faith that there is a reasonable probability that an action may materially and adversely affect it Party's right to indemnity; then the Indemnifiable Losses resulting from the settlement or its Affiliates other than as a result the final, non-appealable adjudication of monetary damages, (ii) the Indemnifying Party shall not have (A) assumed the defense of the such Third Party Claim, (B) conducted or that portion thereof as to which the defense in an active and diligent manneris unsuccessful, or (C) employed counsel reasonably satisfactory shall promptly be paid by the Indemnifying Party to the Indemnified Party to have charge of such third party action, (iii) the Indemnified Party shall have reasonably concluded that there may be defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party, or (iv) the Indemnified Party’s counsel shall have advised the Indemnified Party in writing, with a copy delivered to the Indemnifying Party, that there is a material conflict of interest that could violate applicable standards of professional conduct to have common counsel, then, in each case, such Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise or settle such action, but the Indemnifying Party shall have no liability with respect to a compromise or settlement with respect to such Third Party Claim entered into without its consent (which shall not be unreasonably withheld, conditioned or delayed).
Appears in 1 contract
Matters Involving Third Parties. (a) If any third party shall notify an notifies any Party (the “Indemnified Party with respect to any Party”) of a matter (a “Third Party Claim”) which may give rise to a claim for indemnification against any other Party (the “Indemnifying Parties Party”) under ARTICLE VII or this Article 8ARTICLE X, then the Indemnified Party shall promptly notify the each Indemnifying Parties (the Representative, if the Securityholders are the Indemnifying Parties) Party thereof in writing, describing the claim, the amount thereof (if known and quantifiable) and the basis of the claim; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Parties shall relieve failure to so notify the Indemnifying Party from any obligation hereunder unless (and then solely shall not limit the indemnification obligations under this Agreement except to the extent) extent that the Indemnifying Party is prejudiced therebyby such failure.
(b) The Any Indemnifying Parties will have the right, at their sole cost and expense, Party shall be entitled to defend the Indemnified Party against the Third Party Claim with counsel of the Indemnifying Parties’ choice, reasonably satisfactory to the Indemnified Party, so long as (i) the Indemnifying Parties notify the Indemnified Party, within ten (10) days after the Indemnified Party has given notice of the Third Party Claim to the Indemnifying Parties that the Indemnifying Parties are assuming participate in the defense of such Third Party Claim at such Indemnifying Party’s expense, and at its option will indemnify have the Indemnified Party against such Third Party Claim in accordance with the terms right to assume and limitations of this Article 8 (but excluding, for this purpose Section 8.2(c) and (ii) the Indemnifying Parties thereafter conduct the defense of the Third Party Claim in an active and diligent manner. In with counsel of its choice reasonably satisfactory to the event Indemnified Party; provided, however, that the Indemnifying Parties fail Party will not consent to assume the defense or settlement entry of any Third Party Claim within ten (10) days after notice thereof is given by the Indemnified Party, judgment or fail enter into any settlement with respect to conduct the defense in an active and diligent manner, the Indemnified Party shall have the right to undertake the defense, appeal or settlement of such Third Party Claim at the expense and for the account of the Indemnifying Party.
(c) So long as the conditions set forth in Section 8.5(b) are and remain satisfied, then (i) the Indemnifying Parties may conduct the defense of the Third Party Claim in accordance with Section 8.5(b), (ii) the Indemnified Parties may retain separate co counsel at their sole cost and expense and (iii) the Indemnifying Parties will not, without the prior written consent of the Indemnified Parties Party (which consent shall not be unreasonably withheld or delayed), consent to any admission or the entry of any judgment with respect to the matter, or enter into any settlement which (A) imposes an injunction or other equitable relief upon the Indemnified Party, (B) does not include an unconditional provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all liability with respect thereto or (C) in the reasonable opinion of the Indemnified Party, could have a material adverse effect on its reputation, business, operations, assets, or financial condition.
(d) Notwithstanding the foregoing, if (i) an Indemnified Party determines in good faith that there is a reasonable probability that an action may materially and adversely affect it or its Affiliates other than as a result of monetary damages, (ii) the Indemnifying Party shall not have (A) assumed the defense of the Third Party Claim, (B) conducted the defense in an active and diligent manner, or (C) employed counsel reasonably satisfactory to the Indemnified Party to have charge of such third party action, (iii) the Indemnified Party shall have reasonably concluded that there may be defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party, or (iv) the Indemnified Party’s counsel shall have advised the Indemnified Party in writing, with a copy delivered to the Indemnifying Party, that there is a material conflict of interest that could violate applicable standards of professional conduct to have common counsel, then, in each case, such Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise or settle such action, but the Indemnifying Party shall have no liability with respect to a compromise or settlement with respect to such Third Party Claim entered into without its consent (which shall not be unreasonably withheld, conditioned or delayed); provided, further, that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third Party Claim. Notwithstanding anything herein to the contrary, the Indemnifying Party shall not be entitled to assume control of the defense against a Third Party Claim if (1) the claim for indemnification relates to or arises in connection with any criminal Proceeding, action, indictment, allegation or investigation; (2) the claim seeks an injunction, specific performance or any other equitable or non-monetary relief against the Indemnified Party; (3) the Indemnified Party reasonably believes an adverse determination with respect to the Third Party Claim would be materially detrimental to or materially injure the Indemnified Party’s reputation or future business prospects; (4) the Indemnified Party has been advised by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; (5) the Indemnifying Party fails to prosecute or defend such claim in a commercially reasonable manner; or (6) the claim for indemnification relates to or arises in connection with a breach of any of the representations and warranties of the Company or any Securityholder contained in this Agreement, the Losses sought are less than the Deductible or exceed the Cap, and the claim does not relate to a breach of a Fundamental Representations or allegation of Fraud.
(c) Notwithstanding anything in this Agreement to the contrary, as promptly as reasonably practicable following receipt by Buyer of (A) notice of a Third Party Claim, each Party shall, and Buyer shall cause the Surviving Corporation to, retain documents that are then within such Person’s possession or control and reasonably related to such Third Party Claim for a period of time that the Parties reasonably determines, in consultation with each other, after taking into account all relevant facts and circumstances related to the Third Party Claim that is the subject of such notice, or (B) a written notice by the Representative of a demand or inquiry by a Governmental Authority, or subpoena or other legal process served by any Person, relating to the Company, each Party shall, and Buyer shall cause the Surviving Corporation to, retain documents that are then within such Person’s possession or control and reasonably related to such information, demand or inquiry or such subpoena or other legal process for the time period that the Parties reasonably determine, in consultation with each other, after taking into account all relevant facts and circumstances related to such information, demand or inquiry.
(d) If the Indemnifying Party assumes the defense of a Third Party Claim and the indemnifiable Losses previously incurred or suffered by the Indemnified Party do not, in the aggregate, exceed the Deductible, then the Indemnified Party shall promptly, and in any event within thirty (30) Business Days of receipt of a written request from the Indemnifying Party that includes reasonable supporting documentation, reimburse the Indemnifying Party for the reasonable out-of-pocket expenses incurred by the Indemnifying Party in connection with the defense of such Third Party Claim; provided, however, that any such amounts that are reimbursed pursuant to this sentence shall constitute Losses of the Indemnified Party and shall thereafter count against the Deductible for the purposes of determining indemnifiable Losses in excess of the Deductible pursuant to Section 10.02(c).
(e) Notwithstanding anything to the contrary set forth herein, the Representative and the Securityholders acknowledge and agree that the provisions hereof dealing with Third Party Claims shall be subject to the terms and conditions of the R&W Policy and the rights of the insurer thereunder to, among other things, consent to any settlement thereof.
Appears in 1 contract
Matters Involving Third Parties. (a) If subsequent to Closing any third party shall notify an Indemnified Party with respect to any matter (a “Third Party Claim”) which may give rise to a claim for indemnification against the Indemnifying Parties party under this Article 8rr (other than in respect of a claim under Section 4.r.7 ot 9.6 (a "Third Party Claim"), then the Indemnified Party shall promptly notify the Indemnifying Parties (the Representative, if the Securityholders are the Indemnifying Parties) Indemnifoing Party thereof in writing; provided, however, that no delay on the part writing of the Indemnified Third Party in notifying Claim together with a statement of any Indemnifying Parties shall relieve the Indemnifying available information regarding such Third Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is prejudiced therebyClaim.
(b) The Indemnifying Parties Any Indemniffing Party will have the right, at their sole cost and expense, right to defend the Indemnified Party against the Third Party Claim with counsel of the Indemnifying Parties’ choice, reasonably satisfactory to the Indemnified Party, 's choice so long as (i) the Indemnifying Parties notify Party notifies the Indemnified Party, within ten thirty (10So) days after the Indemnified Party has given notice of the Third Party Claim to the Indemnifying Parties Indemniffing Party that the Indemnifying Parties are Party is assuming the defense of against (or settlement o0 such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in its name or, if necessary, in the name of the Indemnified Party in accordance with the terms and limitations of this Article 8 (but excluding, for this purpose Section 8.2(c) rr and (ii) the Indemnifying Parties conduct Party conducts the defense of the Third Party Claim in an active and diligent manner. In the event that the Indemnifying Parties fail to assume the defense or settlement of any Third Party Claim within ten (10) days after notice thereof is given by the Indemnified Party, or fail to conduct the defense in an active and diligent manner, the Indemnified Party shall have the right to undertake the defense, appeal or settlement of such Third Party Claim at the expense and for the account of the Indemnifying Party.1385198o.4 01 4 -4655-07 27 I 1',l /EUROPE /K
(c) So long as the conditions set forth in Section 8.5(bu.4(b) are and remain satisfied, then (i) the Indemnifying Parties Party may conduct the defense of the Third Third-Party Claim in accordance with Section 8.5(brr.a(b), (ii) the Indemnified Parties Party may retain separate co co-counsel at their its sole cost and expense and (iii) the Indemnifying Parties Party will not, without the prior written consent of the Indemnified Parties (which consent shall not be unreasonably withheld or delayed)indemnified Part5z, consent to any admission or the entry of any judgment with respect to the matter, or enter into any settlement which (A) either imposes an injunction or other equitable relief upon the Indemnified Party, (B) Party or does not include an unconditional a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party Parfy from all liability with respect thereto or (C) in the reasonable opinion of the Indemnified Party, could have a material adverse effect on its reputation, business, operations, assets, or financial condition.
(d) Notwithstanding the foregoing, if (i) an Indemnified Party determines in good faith that there is a reasonable probability that an action may materially and adversely affect it or its Affiliates other than as a result of monetary damages, (ii) the Indemnifying Party shall not have (A) assumed the defense of the Third Party Claim, (B) conducted the defense in an active and diligent manner, or (C) employed counsel reasonably satisfactory to the Indemnified Party to have charge of such third party action, (iii) the Indemnified Party shall have reasonably concluded that there may be defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party, or (iv) the Indemnified Party’s counsel shall have advised the Indemnified Party in writing, with a copy delivered to the Indemnifying Party, that there is a material conflict of interest that could violate applicable standards of professional conduct to have common counsel, then, in each case, such Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise or settle such action, but the Indemnifying Party shall have no liability with respect to a compromise or settlement with respect to such Third Party Claim entered into without its consent (which shall not be unreasonably withheld, conditioned or delayed).thereto. t2 Miscellaneous 72.1
Appears in 1 contract
Matters Involving Third Parties. (a) If any third party shall notify an any Party (the “Indemnified Party Party”) with respect to any matter (a “Third Party Claim”) which may which, if true (without any responsibility for independent investigation of the facts or law contained in such notice from the third party), would give rise to a claim for indemnification against any other Party (the “Indemnifying Parties Party”) under this Article 8VIII, then the Indemnified Party shall promptly notify the each Indemnifying Parties (the Representative, if the Securityholders are the Indemnifying Parties) thereof Party in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Parties Party shall relieve the Indemnifying Party from any obligation hereunder unless the Indemnifying Party thereby is prejudiced (and then solely to the extent) extent of such prejudice). Such notice by the Indemnifying Indemnified Party is prejudiced therebyshall describe the Third Party Claim in reasonable detail, shall include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Adverse Consequence that has been or may be sustained by the Indemnified Party.
(b) The Any Indemnifying Parties Party will have the rightright to participate in or assume, at their the Indemnifying Party’s sole cost and expense, to defend the Indemnified Party against defense of the Third Party Claim with counsel of the its choice if such Indemnifying Parties’ choice, reasonably satisfactory to Party notifies the Indemnified Party, so long as Party in writing within fifteen (i) the Indemnifying Parties notify the Indemnified Party, within ten (1015) days after receipt of the Indemnified Party has given notice of the Third Party Claim that it intends to the Indemnifying Parties that the Indemnifying Parties are assuming the defense of such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in accordance with the terms and limitations of this Article 8 (but excluding, for this purpose Section 8.2(c) and (ii) the Indemnifying Parties conduct assume the defense of the Third Party Claim in an active and diligent mannerClaim. In the event that the Indemnifying Parties fail to assume Party assumes the defense or settlement of any Third Party Claim within ten (10) days after notice thereof is given by the Indemnified PartyClaim, or fail subject to conduct the defense in an active and diligent mannerSection 8.4(c), the Indemnified Party it shall have the right to undertake the defensetake such action as it deems necessary to avoid, dispute, defend, appeal or settlement of make counterclaims pertaining to any such Third Party Claim at in the expense name and for the account on behalf of the Indemnifying Party.
(c) So long as Indemnified Party and the conditions set forth Indemnified Party shall cooperate in Section 8.5(b) are and remain satisfied, then (i) the Indemnifying Parties may conduct good faith in the defense of the Third Party Claim in accordance with Section 8.5(b), (ii) the Claim. The Indemnified Parties Party may retain separate co co-counsel and participate in the defense of the Third Party Claim, but the fees and expenses of such counsel employed by the Indemnified Party shall be at their sole cost and the expense and (iii) of the Indemnified Party subject to the Indemnifying Parties Party’s right to control the defense thereof; provided, however, in the event that the interests of the Indemnifying Party and the Indemnified Party diverge to the extent that a conflict of interest would exist for counsel of the Indemnifying Party to represent both the Indemnifying Party and the Indemnified Party, Indemnified Party may retain separate co-counsel, participate through such counsel in the defense of the Third Party Claim, and at the expense of the Indemnifying Party. Sellers and Buyer shall cooperate with each other in all reasonable respects in connection with the defense of any Third Party Claim, including making available (subject to the provisions of the Confidentiality Agreement) records relating to such Third Party Claim and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the defending party, management employees of the non-defending party as may be reasonably necessary for the preparation of the defense of such Third Party Claim.
(c) The Indemnifying Party will not, not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnified Party (not to be withheld unreasonably) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties (which consent shall and does not be unreasonably withheld or delayed), consent to any admission or the entry of any judgment with respect to the matter, or enter into any settlement which (A) imposes impose an injunction or other equitable relief upon the Indemnified Party, (B) does not include an unconditional provision whereby Party and such judgment or proposed settlement includes the giving by the claimant or the plaintiff or claimant in the matter releases the Indemnified Party from all liability with respect thereto or (C) in the reasonable opinion of a release of the Indemnified Party, could have a material adverse effect on its reputationreasonably satisfactory to the Indemnified Party, business, operations, assets, from all Adverse Consequences with respect to such Third Party Claim. The Indemnified Party will not consent to the entry of any judgment or financial conditionenter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnifying Party (not to be withheld unreasonably).
(d) Notwithstanding In the foregoing, if event the Indemnifying Party does not elect to compromise or defend the Third Party Claim or fails to notify the Indemnified Party in writing within fifteen (15) days after receipt of the notice of the Third Party Claim in accordance with Sections 8.4(b) (i) an the Indemnified Party determines may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the Third Party Claim in good faith that there is a reasonable probability that an action any manner it reasonably may materially deem appropriate (and adversely affect it the Indemnified Party need not consult with, or its Affiliates other than as a result of monetary damagesobtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Party shall not have (A) assumed will remain responsible for any Adverse Consequences the defense of Indemnified Party may suffer resulting from, arising out of, relating to, or caused by the Third Party Claim to the fullest extent provided in this Article VIII.
(e) Any claim by an Indemnified Party on account of Adverse Consequences which does not result from a Third Party Claim (“Direct Claim”) shall be asserted by the Indemnified Party giving the Indemnifying Party prompt written notice thereof (the “Indemnity Notice”). The failure to give the Indemnity Notice promptly shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Direct Claim in reasonable detail, shall include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Adverse Consequence that has been or may be sustained by the Indemnified Party. The Indemnifying Party shall have sixty (60) days after its receipt of the Indemnity Notice to respond in writing to such Direct Claim. During such sixty (60)-day period, the Indemnified Party shall allow the Indemnifying Party and its professional advisors to investigate the matter or circumstance alleged to give rise to the Direct Claim, and whether and to what extent any amount is payable in respect of the Direct Claim and the Indemnified Party shall assist the Indemnifying Party’s investigation by giving such information and assistance (Bincluding access to the Indemnified Party’s premises and personnel and the right to examine and copy any accounts, documents or records) conducted as the defense Indemnifying Party or any of its professional advisors may reasonably request. If the Indemnifying Party does not so respond within such sixty (60)-day period, the Indemnifying Party shall be deemed to have rejected such claim, in an active and diligent manner, or (C) employed counsel reasonably satisfactory which case the Indemnified Party shall be free to pursue such remedies as may be available to the Indemnified Party to have charge of such third party action, (iii) on the Indemnified Party shall have reasonably concluded that there may be defenses available to such Indemnified Party that are different from or additional to those available terms and subject to the provisions of this Agreement.
(f) Amounts payable by the Indemnifying Party, or (iv) the Indemnified Party’s counsel shall have advised Party to the Indemnified Party in writing, with a copy delivered respect of any Adverse Consequences for which any Party is entitled to the Indemnifying Party, that there is a material conflict of interest that could violate applicable standards of professional conduct to have common counsel, then, in each case, such Indemnified Party may, indemnification hereunder shall be payable by notice to the Indemnifying Party, assume the exclusive right to defend, compromise or settle such action, but the Indemnifying Party shall have no liability with respect to a compromise or settlement with respect to such Third Party Claim entered into without its consent (which shall not be unreasonably withheld, conditioned or delayed)as incurred by the Indemnified Party.
Appears in 1 contract
Sources: Asset Purchase Agreement (FreightCar America, Inc.)
Matters Involving Third Parties. (a) If any third party shall notify commence an Action against any Indemnified Party with respect to any matter (a “"Third Party Claim”") which may give rise to a claim for indemnification against the Indemnifying Parties under this Article 8Section 12.1, then the Indemnified Party shall promptly notify the Indemnifying Parties Party in writing as soon as practicable.
(b) The Indemnifying Party shall have the Representativeright to defend the Indemnified Party against the Third Party Claim with counsel of its choice and reasonably acceptable to the Indemnified Party so long as (i) the Indemnifying Party shall notify the Indemnified Party in writing (within 30 days after its receipt of notice, in accordance with Section 15.7, of the Third Party Claim as provided in Section 12.2 or, if the Securityholders are Indemnifying Party has disputed the claim for indemnification, then within ten days of a final determination that such claim is a valid claim under Section 12.1) that the Indemnified Party will be entitled to indemnification under Section 12.1 hereof from and against any Damages the Indemnified Party may suffer arising out of the Third Party Claim and (ii) the Indemnifying Parties) thereof in writing; provided, however, Party diligently conducts the defense of the Third Party Claim. It is agreed that no delay on the part of the Indemnified Party in notifying any Indemnifying Parties shall Party of a claim (including any Third Party Claim) will relieve the Indemnifying Party from any obligation hereunder thereby unless (and then solely to the extent) the said Indemnifying Party is prejudiced thereby.
(b) The Indemnifying Parties will have the right, at their sole cost and expense, by such failure to defend the Indemnified Party against the Third Party Claim with counsel of the Indemnifying Parties’ choice, reasonably satisfactory to the Indemnified Party, so long as (i) the Indemnifying Parties notify the Indemnified Party, within ten (10) days after the Indemnified Party has given notice of the Third Party Claim to the Indemnifying Parties that the Indemnifying Parties are assuming the defense of such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in accordance with the terms and limitations of this Article 8 (but excluding, for this purpose Section 8.2(c) and (ii) the Indemnifying Parties conduct the defense of the Third Party Claim in an active and diligent manner. In the event that the Indemnifying Parties fail to assume the defense or settlement of any Third Party Claim within ten (10) days after notice thereof is given by the Indemnified Party, or fail to conduct the defense in an active and diligent manner, the Indemnified Party shall have the right to undertake the defense, appeal or settlement of such Third Party Claim at the expense and for the account of the Indemnifying Partygive notice.
(c) So long as the conditions set forth in Section 8.5(b) are and remain satisfied, then (i) the Indemnifying Parties may conduct Party is conducting the defense of the Third Party Claim in accordance with Section 8.5(b)12.3(b) above, (i) the Indemnified Party may retain separate co-counsel, at its sole cost and expense, and participate in the defense of the Third Party Claim, (ii) the Indemnified Parties may retain separate co counsel at their sole cost and expense and (iii) Party shall not consent to the Indemnifying Parties will not, entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnified Parties (Indemnifying Party, which consent shall not be unreasonably withheld or delayed), consent to any admission or the entry of any judgment with respect to the matter, or enter into any settlement which (A) imposes an injunction or other equitable relief upon the Indemnified Party, (B) does not include an unconditional provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all liability with respect thereto or (C) in the reasonable opinion of the Indemnified Party, could have a material adverse effect on its reputation, business, operations, assets, or financial condition.
(d) Notwithstanding the foregoing, if (i) an Indemnified Party determines in good faith that there is a reasonable probability that an action may materially and adversely affect it or its Affiliates other than as a result of monetary damages, (ii) the Indemnifying Party shall not have (A) assumed the defense of the Third Party Claim, (B) conducted the defense in an active and diligent manner, or (C) employed counsel reasonably satisfactory to the Indemnified Party to have charge of such third party action, (iii) the Indemnified Party shall have reasonably concluded that there may be defenses available to such Indemnified Party that are different from or additional to those available to cooperate within reason with the Indemnifying Party, or 's defense of such Third Party Claim and (iv) the Indemnifying Party shall not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnified Party’s counsel , which consent shall have advised the not be unreasonably withheld or delayed. Notwithstanding any other provision of this Section 12.3, if an Indemnified Party in writingwithholds its consent to a settlement or elects to defend any claim, with a copy delivered to where but for such action the Indemnifying PartyParty could have settled such claim, that there is a material conflict of interest that could violate applicable standards of professional conduct to have common counsel, then, in each case, such Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise or settle such action, but the Indemnifying Party shall have no liability with respect be required to indemnify the Indemnified Party only up to a compromise or maximum of the bona fide settlement with respect to offer for which the Indemnifying Party could have settled such Third Party Claim entered into without its consent (which shall not be unreasonably withheld, conditioned or delayed)claim.
Appears in 1 contract
Matters Involving Third Parties. (a) 9.5.1. If any third party shall notify an notifies any Indemnified Party with respect to any matter (a “Third Party Claim”) which that may give rise to a claim for indemnification against the any Indemnifying Parties Party under this Article 8Section 9 (a “Third Party Claim”), then the Indemnified Party shall promptly will promptly, and in any event within ten (10) Business Days, notify in writing the Indemnifying Parties Party of such Third Party Claim (such notification, a “Claim Notice”) describing in reasonable detail the Representative, if basis for such Third Party Claim (including identification of the Securityholders are provisions of this Agreement alleged to have been breached and the amount of Losses incurred or suffered with respect thereto) and enclosing copies of any documents then available to the Indemnified Party relating to such Third Party Claim and thereafter provide the Indemnifying Parties) thereof in writingParty such documents and information with respect thereto that the Indemnifying Party may reasonably request; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Parties shall Party will relieve the Indemnifying Party from any indemnification obligation hereunder unless (and then solely to the extent) the Indemnifying Party is prejudiced thereby.. Thereafter, the Indemnified Party will deliver to the Indemnifying Party, within five (5) Business Days of the Indemnifying Party’s receipt thereof, copies of all notices, demands and other documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. This Section 9.5 shall not apply to the conduct of any Tax Proceedings, which shall be exclusively governed by Section 8.7.5. -42-
(b) 9.5.2. The Indemnifying Parties Party will have the right, at their sole cost and expense, right to defend control the Indemnified Party against defense of the Third Party Claim with counsel of the Indemnifying Parties’ its choice, reasonably satisfactory to the Indemnified Party, so long as (i) the Indemnifying Parties notify the Indemnified Party, within ten (10) days after the Indemnified Party has given notice of the Third Party Claim to the Indemnifying Parties that the Indemnifying Parties are assuming the defense of such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in accordance with the terms and limitations of this Article 8 (but excluding, for this purpose Section 8.2(c) and (ii) the Indemnifying Parties conduct the defense of the Third Party Claim in an active and diligent manner. In the event that the Indemnifying Parties fail to assume the defense or settlement of any Third Party Claim within ten (10) days after notice thereof is given by the Indemnified Party, or fail to conduct the defense in an active and diligent manner, the Indemnified Party shall have the right to undertake the defense, appeal or settlement of such Third Party Claim at the expense and for the account of the Indemnifying Party.
(c) So long as the conditions set forth in Section 8.5(b) are and remain satisfied, then (i) the Indemnifying Parties may conduct the defense of the Third Party Claim in accordance with Section 8.5(b), (ii) the Indemnified Parties may retain separate co counsel at their sole cost and expense and (iii) the Indemnifying Parties will not, without the prior written consent of the Indemnified Parties (which consent shall not be unreasonably withheld or delayed), consent to any admission or the entry of any judgment with respect to the matter, or enter into any settlement which (A) imposes an injunction or other equitable relief upon the Indemnified Party, (B) does not include an unconditional provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all liability with respect thereto or (C) in the reasonable opinion of the Indemnified Party, could have a material adverse effect on its reputation, business, operations, assets, or financial condition.
(d) Notwithstanding the foregoing, if (i) an Indemnified Party determines in good faith that there is a reasonable probability that an action may materially and adversely affect it or its Affiliates other than as a result of monetary damages, (ii) 9.5.3. If the Indemnifying Party shall not have (A) assumed is conducting the defense of the Third Party Claim, (Ba) conducted the defense in an active and diligent manner, or (C) employed counsel reasonably satisfactory to the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third Party Claim (but not of record, and shall not communicate with the Person asserting the Third Party Claim or its Representatives), (b) the Indemnified Party will not consent to have charge the entry of any judgment or enter into any settlement with respect to the Third Party Claim, nor take any voluntary action prejudicial to the determination of the Third Party Claim, without the prior written consent of the Indemnifying Party and (c) the Indemnifying Party will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim unless (i) written agreement is obtained releasing the Indemnified Party subject to the Third Party Claim from all liability thereunder, (ii) it involves only the payment of money and the amount of such third party action, judgment or settlement does not exceed an amount equal to (A) the balance of the Indemnity Escrow Funds at such time plus (B) any amounts recoverable under the R&W Policy and (iii) the Indemnified Party shall have reasonably concluded that there may be defenses available to such Indemnified Party that are different from judgment or additional to those available to the Indemnifying Party, settlement does not involve any finding or (iv) admission of a violation of any Legal Requirement by the Indemnified Party’s counsel shall have advised . If the Indemnifying Party is not conducting the defense of the Third Party Claim, the Indemnified Party in writing, with a copy delivered will not consent to the Indemnifying Party, that there is a material conflict entry of interest that could violate applicable standards of professional conduct to have common counsel, then, in each case, such Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise any judgment or settle such action, but the Indemnifying Party shall have no liability with respect to a compromise or enter into any settlement with respect to such Third Party Claim entered into without its the prior written consent of the Indemnifying Party (which shall such consent not to be unreasonably withheld, conditioned or delayed).
9.5.4. Each party will cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and will furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith. In all events the insurer under the R&W Policy and its agents and advisors will be permitted to reasonably cooperate with any party to this Agreement in the defense of any matter which might reasonably constitute a Loss (as defined in the R&W Policy).
Appears in 1 contract
Sources: Stock Purchase Agreement
Matters Involving Third Parties. (ai) If any third party shall notify an any Party (for purposes hereof the term “Party” shall be deemed to include the Shareholders) (the “Indemnified Party Party”) with respect to any matter (a “Third Party Claim”) which may give rise to a claim for indemnification against any other Party (the “Indemnifying Parties Party”) under this Article Section 8, then the Indemnified Party shall promptly (but in no event more than fifteen (15) days after the Indemnified Party receives notice of such Third Party Claim) notify the each Indemnifying Parties (the Representative, if the Securityholders are the Indemnifying Parties) Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Parties Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party thereby is prejudiced therebyprejudiced.
(bii) The Any Indemnifying Parties Party will have the right, at their sole cost and expense, right to defend the Indemnified Party against the Third Party Claim with counsel of the Indemnifying Parties’ choice, reasonably its choice satisfactory to the Indemnified PartyParty (and Parent and Buyer hereby acknowledge that Vedder, Price, ▇▇▇▇▇▇▇ & Kammholz is satisfactory) so long as (iA) the Indemnifying Parties notify Party notifies the Indemnified Party, Party in writing within ten thirty (1030) days after the Indemnified Party has given notice of the Third Party Claim to the Indemnifying Parties that the Indemnifying Parties are assuming Party will assume and control the defense of such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in accordance with the terms and limitations of this Article 8 (but excludingdefense, for this purpose Section 8.2(c) and (iiB) the Indemnifying Parties conduct Party conducts the defense of the Third Party Claim in an active actively and diligent manner. In the event that the Indemnifying Parties fail to assume the defense or settlement of any Third Party Claim within ten (10) days after notice thereof is given by the Indemnified Party, or fail to conduct the defense in an active and diligent manner, the Indemnified Party shall have the right to undertake the defense, appeal or settlement of such Third Party Claim at the expense and for the account of the Indemnifying Partydiligently.
(ciii) So long as the conditions set forth in Section 8.5(b) are and remain satisfied, then (i) the Indemnifying Parties may conduct Party is conducting the defense of the Third Party Claim in accordance with Section 8.5(b)8(d)(ii) above, (iiA) the Indemnified Parties Party may retain separate co co-counsel at their its sole cost and expense and (iii) the Indemnifying Parties will not, without the prior written consent of the Indemnified Parties (which consent shall not be unreasonably withheld or delayed), consent to any admission or the entry of any judgment with respect to the matter, or enter into any settlement which (A) imposes an injunction or other equitable relief upon the Indemnified Party, (B) does not include an unconditional provision whereby the plaintiff or claimant participate in the matter releases the Indemnified Party from all liability with respect thereto or (C) in the reasonable opinion of the Indemnified Party, could have a material adverse effect on its reputation, business, operations, assets, or financial condition.
(d) Notwithstanding the foregoing, if (i) an Indemnified Party determines in good faith that there is a reasonable probability that an action may materially and adversely affect it or its Affiliates other than as a result of monetary damages, (ii) the Indemnifying Party shall not have (A) assumed the defense of the Third Party Claim, (B) conducted neither the defense in an active and diligent manner, or (C) employed counsel reasonably satisfactory to Indemnifying Party nor the Indemnified Party will consent to have charge the entry of such third party action, any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the other Party (iii) which consent of the Indemnified other Party shall have reasonably concluded that there may not be defenses available to such Indemnified Party that are different from unreasonably withheld or additional to those available to the Indemnifying Party, or delayed).
(iv) In the Indemnified Party’s counsel shall have advised event any of the Indemnified Party conditions in writing8(d)(ii) above is or becomes unsatisfied, with a copy delivered to the Indemnifying Partyhowever, that there is a material conflict of interest that could violate applicable standards of professional conduct to have common counsel, then, in each case, such Indemnified Party may, by (A) after written notice to the Indemnifying PartyParty in the event the conditions in Section 8(d)(ii) become unsatisfied and are not cured within thirty (30) days after such notice, assume the exclusive right Indemnified Party may defend against, and consent to defendthe entry of any judgment or enter into any settlement with respect to, compromise the Third Party Claim in any manner it may deem appropriate (and the Indemnified Party need not consult with, or settle such actionobtain any consent from, but any Indemnifying Party in connection therewith), and (B) the Indemnifying Party shall have no liability with respect to a compromise will remain responsible for any Adverse Consequences the Indemnified Party may suffer resulting, arising out of, relating to, or settlement with respect to such caused by the Third Party Claim entered into without its consent (which shall not be unreasonably withheld, conditioned or delayed)to the fullest extent provided in this Section 8.
Appears in 1 contract
Matters Involving Third Parties. (a) 9.5.1. If any third party shall notify an notifies any Indemnified Party with respect to any matter (a “Third Party Claim”) which that may give rise to a claim for indemnification against the any Indemnifying Parties Party under this Article 8Section 9 (a “Third Party Claim”), then the Indemnified Party shall promptly will promptly, and in any event within ten (10) Business Days, notify in writing the Indemnifying Parties Party of such Third Party Claim (such notification, a “Claim Notice”) describing in reasonable detail the Representative, if basis for such Third Party Claim (including identification of the Securityholders are provisions of this Agreement alleged to have been breached and the amount of Losses incurred or suffered with respect thereto) and enclosing copies of any documents then available to the Indemnified Party relating to such Third Party Claim and thereafter provide the Indemnifying Parties) thereof in writingParty such documents and information with respect thereto that the Indemnifying Party may reasonably request; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Parties shall Party will relieve the Indemnifying Party from any indemnification obligation hereunder unless (and then solely to the extent) the Indemnifying Party is prejudiced thereby. Thereafter, the Indemnified Party will deliver to the Indemnifying Party, within five (5) Business Days of the Indemnifying Party’s receipt thereof, copies of all notices, demands and other documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. This Section 9.5 shall not apply to the conduct of any Tax Proceedings, which shall be exclusively governed by Section 8.7.5.
(b) 9.5.2. The Indemnifying Parties Party will have the right, at their sole cost and expense, right to defend control the Indemnified Party against defense of the Third Party Claim with counsel of the Indemnifying Parties’ its choice, reasonably satisfactory to the Indemnified Party, so long as (i) the Indemnifying Parties notify the Indemnified Party, within ten (10) days after the Indemnified Party has given notice of the Third Party Claim to the Indemnifying Parties that the Indemnifying Parties are assuming the defense of such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in accordance with the terms and limitations of this Article 8 (but excluding, for this purpose Section 8.2(c) and (ii) the Indemnifying Parties conduct the defense of the Third Party Claim in an active and diligent manner. In the event that the Indemnifying Parties fail to assume the defense or settlement of any Third Party Claim within ten (10) days after notice thereof is given by the Indemnified Party, or fail to conduct the defense in an active and diligent manner, the Indemnified Party shall have the right to undertake the defense, appeal or settlement of such Third Party Claim at the expense and for the account of the Indemnifying Party.
(c) So long as the conditions set forth in Section 8.5(b) are and remain satisfied, then (i) the Indemnifying Parties may conduct the defense of the Third Party Claim in accordance with Section 8.5(b), (ii) the Indemnified Parties may retain separate co counsel at their sole cost and expense and (iii) the Indemnifying Parties will not, without the prior written consent of the Indemnified Parties (which consent shall not be unreasonably withheld or delayed), consent to any admission or the entry of any judgment with respect to the matter, or enter into any settlement which (A) imposes an injunction or other equitable relief upon the Indemnified Party, (B) does not include an unconditional provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all liability with respect thereto or (C) in the reasonable opinion of the Indemnified Party, could have a material adverse effect on its reputation, business, operations, assets, or financial condition.
(d) Notwithstanding the foregoing, if (i) an Indemnified Party determines in good faith that there is a reasonable probability that an action may materially and adversely affect it or its Affiliates other than as a result of monetary damages, (ii) 9.5.3. If the Indemnifying Party shall not have (A) assumed is conducting the defense of the Third Party Claim, (Ba) conducted the defense in an active and diligent manner, or (C) employed counsel reasonably satisfactory to the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third Party Claim (but not of record, and shall not communicate with the Person asserting the Third Party Claim or its Representatives), (b) the Indemnified Party will not consent to have charge the entry of any judgment or enter into any settlement with respect to the Third Party Claim, nor take any voluntary action prejudicial to the determination of the Third Party Claim, without the prior written consent of the Indemnifying Party and (c) the Indemnifying Party will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim unless (i) written agreement is obtained releasing the Indemnified Party subject to the Third Party Claim from all liability thereunder, (ii) it involves only the payment of money and the amount of such third party action, judgment or settlement does not exceed an amount equal to (A) the balance of the Indemnity Escrow Funds at such time plus (B) any amounts recoverable under the R&W Policy and (iii) the Indemnified Party shall have reasonably concluded that there may be defenses available to such Indemnified Party that are different from judgment or additional to those available to the Indemnifying Party, settlement does not involve any finding or (iv) admission of a violation of any Legal Requirement by the Indemnified Party’s counsel shall have advised . If the Indemnifying Party is not conducting the defense of the Third Party Claim, the Indemnified Party in writing, with a copy delivered will not consent to the Indemnifying Party, that there is a material conflict entry of interest that could violate applicable standards of professional conduct to have common counsel, then, in each case, such Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise any judgment or settle such action, but the Indemnifying Party shall have no liability with respect to a compromise or enter into any settlement with respect to such Third Party Claim entered into without its the prior written consent of the Indemnifying Party (which shall such consent not to be unreasonably withheld, conditioned or delayed).
9.5.4. Each party will cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and will furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith. In all events the insurer under the R&W Policy and its agents and advisors will be permitted to reasonably cooperate with any party to this Agreement in the defense of any matter which might reasonably constitute a Loss (as defined in the R&W Policy).
Appears in 1 contract
Matters Involving Third Parties. (ai) If any third party shall notify an Indemnified any Party (the "INDEMNIFIED PARTY") with respect to any matter (a “Third Party Claim”"THIRD PARTY CLAIM") which may give rise to a claim by such Indemnified Party for indemnification against any other Party (the Indemnifying Parties "INDEMNIFYING PARTY") under this Article 8Agreement, then the Indemnified Party shall promptly notify the each Indemnifying Parties (the Representative, if the Securityholders are the Indemnifying Parties) Party thereof in writingpromptly; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Parties Party shall relieve the Indemnifying Party from any liability or obligation hereunder unless (and then solely to the extentextent that) the Indemnifying Party is prejudiced damaged thereby.
(bii) The Any Indemnifying Parties Party will have the right, at their sole cost and expense, right to defend the Indemnified Party against the Third Party Claim with counsel of the Indemnifying Parties’ Party's choice, reasonably satisfactory to the Indemnified Party, so long as (iA) the Indemnifying Parties notify Party notifies the Indemnified Party, within ten twenty (1020) business days after the Indemnified Party has given notice of the Third Party Claim to the Indemnifying Parties Party (or by such earlier date as may be necessary under applicable procedural rules in order to file a timely appearance and response) that the Indemnifying Parties are Party is assuming the defense of such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in accordance with the terms and limitations of this Article 8 Section 5.5, (but excluding, for this purpose Section 8.2(c) and (iiB) the Indemnifying Parties conduct Party provides the Indemnified Party with reasonable evidence that the Indemnifying Party will have the financial resources to defend against the Third Party Claim and fulfill its indemnification obligations hereunder with respect thereto, and (C) the Indemnifying Party conducts the defense of the Third Party Claim in an active actively and diligent manner. In the event that the Indemnifying Parties fail to assume the defense or settlement of any Third Party Claim within ten (10) days after notice thereof is given by the Indemnified Party, or fail to conduct the defense in an active and diligent manner, the Indemnified Party shall have the right to undertake the defense, appeal or settlement of such Third Party Claim at the expense and for the account of the Indemnifying Partydiligently.
(ciii) So long as the conditions set forth in Section 8.5(b5.5(f)(ii) are and remain satisfied, then (iA) the Indemnifying Parties Party may conduct the defense of the Third Third-Party Claim in accordance with Section 8.5(b5.5(f)(ii), (iiB) the Indemnified Parties Party may retain separate co co-counsel at their its sole cost and expense and (iii) except that the Indemnifying Parties Party will not, without be responsible for the prior written consent fees and expenses of the Indemnified Parties (which consent shall not be unreasonably withheld or delayed), consent to any admission or the entry of any judgment with respect separate co-counsel to the matter, or enter into any settlement which (A) imposes an injunction or other equitable relief upon the Indemnified Party, (B) does not include an unconditional provision whereby the plaintiff or claimant in the matter releases extent the Indemnified Party from all liability with respect thereto or (C) in reasonably concludes that the reasonable opinion of the Indemnified Party, could have a material adverse effect on its reputation, business, operations, assets, or financial condition.
(d) Notwithstanding the foregoing, if (i) an Indemnified Party determines in good faith that there is a reasonable probability that an action may materially and adversely affect it or its Affiliates other than as a result of monetary damages, (ii) counsel the Indemnifying Party shall not have (A) assumed the defense of the Third Party Claim, (B) conducted the defense in an active and diligent manner, or (C) employed counsel reasonably satisfactory to the Indemnified Party to have charge of such third party action, (iii) the Indemnified Party shall have reasonably concluded that there may be defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party, or (iv) the Indemnified Party’s counsel shall have advised the Indemnified Party in writing, with a copy delivered to the Indemnifying Party, that there is a material conflict of interest that could violate applicable standards of professional conduct to have common counsel, then, in each case, such Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise or settle such action, but the Indemnifying Party shall have no liability with respect to a compromise or settlement with respect to such Third Party Claim entered into without its consent (which shall not be unreasonably withheld, conditioned or delayed).has
Appears in 1 contract
Sources: Merger Agreement (Superior Consultant Holdings Corp)
Matters Involving Third Parties. (a) If any third party shall notify commence an Action against any Indemnified Party with respect to any matter (a “Third Party Claim”) which may give rise to a claim for indemnification against the Indemnifying Parties under this Article 8Section 10.1, then the Indemnified Party shall promptly notify the Indemnifying Parties Party in writing as soon as practicable.
(b) The Indemnifying Party shall have the Representativeright to defend the Indemnified Party against the Third Party Claim with counsel of its choice and reasonably acceptable to the Indemnified Party so long as (i) the Indemnifying Party shall notify the Indemnified Party in writing (within 30 days after its receipt of notice, in accordance with Section 12.5, of the Third Party Claim as provided in Section 10.4 or, if the Securityholders are Indemnifying Party has disputed the claim for indemnification, then within ten days of a final determination that such claim is a valid claim under Section 10.1) that the Indemnified Party will be entitled to indemnification under Section 10.1 hereof from and against any Damages the Indemnified Party may suffer arising out of the Third Party Claim and (ii) the Indemnifying Parties) thereof in writing; provided, however, Party diligently conducts the defense of the Third Party Claim. It is agreed that no delay on the part of the Indemnified Party in notifying any Indemnifying Parties shall Party of a claim (including any Third Party Claim) will relieve the Indemnifying Party from any obligation hereunder thereby unless (and then solely to the extent) the said Indemnifying Party is prejudiced thereby.
(b) The Indemnifying Parties will have the right, at their sole cost and expense, by such failure to defend the Indemnified Party against the Third Party Claim with counsel of the Indemnifying Parties’ choice, reasonably satisfactory to the Indemnified Party, so long as (i) the Indemnifying Parties notify the Indemnified Party, within ten (10) days after the Indemnified Party has given notice of the Third Party Claim to the Indemnifying Parties that the Indemnifying Parties are assuming the defense of such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in accordance with the terms and limitations of this Article 8 (but excluding, for this purpose Section 8.2(c) and (ii) the Indemnifying Parties conduct the defense of the Third Party Claim in an active and diligent manner. In the event that the Indemnifying Parties fail to assume the defense or settlement of any Third Party Claim within ten (10) days after notice thereof is given by the Indemnified Party, or fail to conduct the defense in an active and diligent manner, the Indemnified Party shall have the right to undertake the defense, appeal or settlement of such Third Party Claim at the expense and for the account of the Indemnifying Partygive notice.
(c) So long as the conditions set forth in Section 8.5(b) are and remain satisfied, then (i) the Indemnifying Parties may conduct Party is conducting the defense of the Third Party Claim in accordance with Section 8.5(b)10.4(b) above, (i) the Indemnified Party may retain separate co-counsel, at its sole cost and expense, and participate in the defense of the Third Party Claim, (ii) the Indemnified Parties may retain separate co counsel at their sole cost and expense and (iii) Party shall not consent to the Indemnifying Parties will not, entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnified Parties (Indemnifying Party, which consent shall not be unreasonably withheld or delayed), consent to any admission or the entry of any judgment with respect to the matter, or enter into any settlement which (A) imposes an injunction or other equitable relief upon the Indemnified Party, (B) does not include an unconditional provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all liability with respect thereto or (C) in the reasonable opinion of the Indemnified Party, could have a material adverse effect on its reputation, business, operations, assets, or financial condition.
(d) Notwithstanding the foregoing, if (i) an Indemnified Party determines in good faith that there is a reasonable probability that an action may materially and adversely affect it or its Affiliates other than as a result of monetary damages, (ii) the Indemnifying Party shall not have (A) assumed the defense of the Third Party Claim, (B) conducted the defense in an active and diligent manner, or (C) employed counsel reasonably satisfactory to the Indemnified Party to have charge of such third party action, (iii) the Indemnified Party shall have reasonably concluded that there may be defenses available to such Indemnified Party that are different from or additional to those available to cooperate within reason with the Indemnifying Party, or 's defense of such Third Party Claim and (iv) the Indemnified Party’s counsel shall have advised the Indemnified Party in writing, with a copy delivered to the Indemnifying Party, that there is a material conflict of interest that could violate applicable standards of professional conduct to have common counsel, then, in each case, such Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise or settle such action, but the Indemnifying Party shall have no liability with respect not consent to a compromise the entry of any judgment or enter into any settlement with respect to such the Third Party Claim entered into without its the prior written consent (of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned withheld or delayed).
Appears in 1 contract
Matters Involving Third Parties. (a) If any third party shall notify an Indemnified Party with respect to any matter (a “Third Party Claim”) which may give rise to a claim for indemnification against the Indemnifying Parties under this Article 87, then the Indemnified Party shall promptly notify the Indemnifying Parties (the Representative, if the Securityholders are the Indemnifying Parties) thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Parties shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is prejudiced thereby.
(b) The Indemnifying Parties will have the right, at their sole cost and expense, to defend the Indemnified Party against the Third Party Claim with counsel of the Indemnifying Parties’ choice, reasonably satisfactory to the Indemnified Party, so long as (i) the Indemnifying Parties notify the Indemnified Party, within ten (10) days after the Indemnified Party has given notice of the Third Party Claim to the Indemnifying Parties that the Indemnifying Parties are assuming the defense of such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in accordance with the terms and limitations of this Article 8 (but excluding, for this purpose Section 8.2(c) 7 and (ii) the Indemnifying Parties conduct the defense of the Third Party Claim in an active and diligent manner. In the event that the Indemnifying Parties fail to assume the defense or settlement of any Third Party Claim within ten (10) days after notice thereof is given by the Indemnified Party, or fail to conduct the defense in an active and diligent manner, the Indemnified Party shall have the right to undertake the defense, appeal or settlement of such Third Party Claim at the expense and for the account of the Indemnifying Party.
(c) So long as the conditions set forth in Section 8.5(b7.5(b) are and remain satisfied, then (i) the Indemnifying Parties may conduct the defense of the Third Third-Party Claim in accordance with Section 8.5(b7.5(b), (ii) the Indemnified Parties may retain separate co co-counsel at their sole cost and expense and (iii) the Indemnifying Parties will not, without the prior written consent of the Indemnified Parties (which consent shall not be unreasonably withheld or delayed), consent to any admission or the entry of any judgment with respect to the matter, or enter into any settlement which (A) imposes an injunction or other equitable relief upon the Indemnified Party, (B) does not include an unconditional provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all liability with respect thereto or (C) in the reasonable opinion of the Indemnified Party, could have a material adverse effect on its reputation, business, operations, assets, or financial condition.
(d) Notwithstanding the foregoing, if (i) an Indemnified Party determines in good faith that there is a reasonable probability that an action may materially and adversely affect it or its Affiliates other than as a result of monetary damages, (ii) the Indemnifying Party shall not have (A) assumed the defense of the Third Third-Party Claim, Claim or (B) conducted the defense in an active and diligent manner, or (C) employed counsel reasonably satisfactory to the Indemnified Party to have charge of such third third-party action, (iii) the Indemnified Party shall have reasonably concluded that there may be defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party, or (iv) the Indemnified Party’s counsel shall have advised the Indemnified Party in writing, with a copy delivered to the Indemnifying Party, that there is a material conflict of interest that could violate applicable standards of professional conduct to have common counsel, then, in each case, such Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise or settle such action, but the Indemnifying Party shall have no liability with respect to a compromise or settlement with respect to such Third Third-Party Claim entered into without its consent (which shall not be unreasonably withheld, conditioned or delayed).
Appears in 1 contract
Sources: Merger Agreement (Jl Halsey Corp)
Matters Involving Third Parties. (a) If any third party shall notify an Indemnified Party with respect to any matter (a “Third Party Claim”) which may give rise to a claim for indemnification against the Indemnifying Parties Party under this Article 812 , then the Indemnified Party shall promptly notify the Indemnifying Parties (the Representative, if the Securityholders are the Indemnifying Parties) Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Parties Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party thereby is prejudiced thereby.
(b) The Any Indemnifying Parties Party will have the right, at their sole cost and expense, right to defend the Indemnified Party against the Third Party Claim with counsel of the Indemnifying Parties’ Party’s choice, reasonably satisfactory to the Indemnified Party, so long as (i) the Indemnifying Parties notify Party notifies the Indemnified Party, within ten twenty (1020) business days after the Indemnified Party has given notice of the Third Party Claim to the Indemnifying Parties Party that the Indemnifying Parties are Party is assuming the defense of such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in accordance with the terms and limitations of this Article 8 (but excluding, for this purpose Section 8.2(c) 12 and (ii) the Indemnifying Parties conduct Party conducts the defense of the Third Party Claim in an active and diligent manner. In the event that the Indemnifying Parties fail to assume the defense or settlement of any Third Party Claim within ten (10) days after notice thereof is given by the Indemnified Party, or fail to conduct the defense in an active and diligent manner, the Indemnified Party shall have the right to undertake the defense, appeal or settlement of such Third Party Claim at the expense and for the account of the Indemnifying Party.
(c) So long as the conditions set forth in Section 8.5(b12.4(b) are and remain satisfied, then (i) the Indemnifying Parties Party may conduct the defense of the Third Third-Party Claim in accordance with Section 8.5(b)12.4(b) , (ii) the Indemnified Parties Party may retain separate co co-counsel at their its sole cost and expense and (iii) the Indemnifying Parties Party will not, without the prior written consent of the Indemnified Parties Party (which consent shall not be unreasonably withheld or delayed), consent to any admission or the entry of any judgment with respect to the matter, or enter into any settlement which (A) either imposes an injunction or other equitable relief upon the Indemnified Party, (B) Party or does not include an unconditional a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all liability with respect thereto or (C) in the reasonable opinion of the Indemnified Party, could have a material adverse effect on its reputation, business, operations, assets, or financial conditionthereto.
(d) Notwithstanding The Sellers and the foregoing, if (i) Buyer shall treat any payments that the Buyer and the Sellers receive pursuant to this Article 12 as an Indemnified Party determines in good faith that there is a reasonable probability that an action may materially adjustment to and adversely affect it or its Affiliates other than as a result of monetary damages, (ii) the Indemnifying Party shall not have (A) assumed the defense refund of the Third Party ClaimPurchase Price for federal Tax purposes, unless a final determination (Bwhich shall include the execution of a Form 870-AD or successor form) conducted the defense in an active and diligent manner, or (C) employed counsel reasonably satisfactory to the Indemnified Party to have charge of such third party action, (iii) the Indemnified Party shall have reasonably concluded that there may be defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party, or (iv) the Indemnified Party’s counsel shall have advised the Indemnified Party in writing, with a copy delivered to the Indemnifying Party, that there is a material conflict of interest that could violate applicable standards of professional conduct to have common counsel, then, in each case, such Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise or settle such action, but the Indemnifying Party shall have no liability with respect to a compromise the Buyer and the Sellers causes such payment not to be treated as an adjustment to or settlement with respect to such Third Party Claim entered into without its consent (which shall not be unreasonably withheld, conditioned or delayed)refund of the Purchase Price for federal Tax purposes.
Appears in 1 contract
Matters Involving Third Parties. (a) If any third party shall notify an Indemnified Party with respect to any matter (a “Third Party Claim”) which may give rise to a claim for indemnification against the Indemnifying Parties under this Article 87, then the Indemnified Party shall promptly notify the Indemnifying Parties (the Representative, if the Securityholders are the Indemnifying Parties) thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Parties shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is prejudiced thereby.
(b) The Indemnifying Parties will have the right, at their sole cost and expense, to defend the Indemnified Party against the Third Party Claim with counsel of the Indemnifying Parties’ choice, reasonably satisfactory to the Indemnified Party, so long as (i) the Indemnifying Parties notify the Indemnified Party, within ten (10) calendar days after the Indemnified Party has given notice of the Third Party Claim to the Indemnifying Parties Parties, that the Indemnifying Parties are assuming the defense of such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in accordance with the terms and limitations of this Article 8 (but excluding, for this purpose Section 8.2(c) 7 and (ii) the Indemnifying Parties conduct the defense of the Third Party Claim in an active and diligent manner. In the event that the Indemnifying Parties fail to assume the defense or settlement of any Third Party Claim within ten (10) calendar days after notice thereof is given by the Indemnified Party, or fail to conduct the defense in an active and diligent manner, the Indemnified Party shall have the right to undertake the defense, appeal or settlement of such Third Party Claim at the expense and for the account of the Indemnifying Party.
(c) So long as the conditions set forth in Section 8.5(b7.5(b) are and remain satisfied, then (i) the Indemnifying Parties may conduct the defense of the Third Third-Party Claim in accordance with Section 8.5(b7.5(b), (ii) the Indemnified Parties may retain separate co co-counsel at their sole cost and expense and (iii) the Indemnifying Parties will not, without the prior written consent of the Indemnified Parties (which consent shall not be unreasonably withheld or delayed), consent to any admission or the entry of any judgment with respect to the matter, or enter into any settlement which (A) imposes an injunction or other equitable relief upon the Indemnified Party, (B) does not include an unconditional provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all liability with respect thereto or (C) in the reasonable opinion of the Indemnified Party, could have a material adverse effect on its reputation, business, operations, assets, or financial condition.
(d) Notwithstanding the foregoing, if (i) an Indemnified Party determines in good faith that there is a reasonable probability that an action may materially and adversely affect it or its Affiliates other than as a result of monetary damages, (ii) the Indemnifying Party shall not have (A) assumed the defense of the Third Third-Party Claim, (B) conducted the defense in an active and diligent manner, manner or (C) employed counsel reasonably satisfactory to the Indemnified Party to have charge of such third third-party action, (iii) the Indemnified Party shall have reasonably concluded that there may be defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party, or (iv) the Indemnified Party’s counsel shall have advised the Indemnified Party in writing, with a copy delivered to the Indemnifying Party, that there is a material conflict of interest that could violate applicable standards of professional conduct to have common counsel, then, in each case, such Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise or settle such action, but the Indemnifying Party shall have no liability with respect to a compromise or settlement with respect to such Third Third-Party Claim entered into without its consent (which shall not be unreasonably withheld, conditioned or delayed).
Appears in 1 contract
Matters Involving Third Parties. (ai) If any third party shall notify an Indemnified Party Fields (or any of them) with respect to any matter (a “"Third Party Claim”") which may give rise to a claim for indemnification against the Indemnifying Parties Seller under this Article 8Section 7, then the Indemnified Party Fields (or any them) shall promptly notify the Indemnifying Parties (the Representative, if the Securityholders are the Indemnifying Parties) Seller thereof in writing; provided, however, that no delay on the part of the Indemnified Party Fields (or any of them) in notifying any Indemnifying Parties the Seller shall relieve the Indemnifying Party Seller from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party Seller thereby is prejudiced therebyprejudiced.
(bii) The Indemnifying Parties Seller will have the right, at their sole cost and expense, right to defend the Indemnified Party Fields (and each of them) against the Third Party Claim with counsel of the Indemnifying Parties’ choice, reasonably its choice satisfactory to the Indemnified Party, Fields so long as as:
(iA) the Indemnifying Parties notify the Indemnified Party, Seller notifies Fields in writing within ten (10) 15 days after the Indemnified Party Fields has given notice of the Third Party Claim to the Indemnifying Parties that the Indemnifying Parties are assuming Seller will indemnify Fields (and each of them) from and against the defense entirety of such any Adverse Consequences Fields (and any of them) may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third Party Claim;
(B) the Seller provides Fields with evidence acceptable to Fields that the Seller will have the financial resources to defend against the Third Party Claim and will indemnify fulfill its indemnification obligations hereunder;
(C) the Indemnified Party against such Third Party Claim in accordance with the terms involves only money damages and limitations of this Article 8 does not seek an injunction or other equitable relief;
(but excluding, for this purpose Section 8.2(c) and (iiD) the Indemnifying Parties conduct settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of Fields, likely to establish a precedential custom or practice materially adverse to the continuing business interests of Fields (or any of them); and
(E) the Seller conducts the defense of the Third Party Claim in an active actively and diligent manner. In the event that the Indemnifying Parties fail to assume the defense or settlement of any Third Party Claim within ten (10) days after notice thereof is given by the Indemnified Party, or fail to conduct the defense in an active and diligent manner, the Indemnified Party shall have the right to undertake the defense, appeal or settlement of such Third Party Claim at the expense and for the account of the Indemnifying Partydiligently.
(ciii) So long as the conditions set forth in Section 8.5(b) are and remain satisfied, then (i) the Indemnifying Parties may conduct The party not conducting the defense of the Third Party Claim in accordance with Section 8.5(b), (ii) the Indemnified Parties above may retain separate co co- counsel at their its sole cost and expense and participate in the defense of the Third Party Claim;
(iiiiv) The party conducting the Indemnifying Parties defense
(A) will not, not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnified Parties other party (which consent shall not to be unreasonably withheld or delayedunreasonably), ; and
(B) will not consent to any admission or the entry of any judgment with respect to the matter, or enter into any settlement which with respect to the Third Party Claim without the prior written consent of the other party (not to be withheld unreasonably).
(v) In the event any of the conditions in Section 7(c)(ii) above is or becomes unsatisfied, however,
(A) imposes an injunction Fields (or other equitable relief upon either of them) may defend against, and consent to the Indemnified Partyentry of any judgment or enter into any settlement with respect to, the Third Party Claim in any manner it reasonably may deem appropriate, and Fields (or either of them) need not consult with, or obtain any consent from, Seller in connection therewith);
(B) does not include an unconditional provision whereby the plaintiff or claimant in Seller will reimburse Fields (and each of them) promptly and periodically for the matter releases costs of defending against the Indemnified Third Party from all liability with respect thereto or Claim (including reasonable attorneys' fees and expenses); and
(C) the Seller will remain responsible for any Adverse Consequences Fields (or any of them) may suffer resulting from, arising out of, relating to, in the reasonable opinion of the Indemnified Party, could have a material adverse effect on its reputation, business, operations, assetsnature of, or financial condition.
(d) Notwithstanding the foregoing, if (i) an Indemnified Party determines in good faith that there is a reasonable probability that an action may materially and adversely affect it or its Affiliates other than as a result of monetary damages, (ii) the Indemnifying Party shall not have (A) assumed the defense of caused by the Third Party Claim, (B) conducted the defense in an active and diligent manner, or (C) employed counsel reasonably satisfactory Claim to the Indemnified Party to have charge of such third party action, (iii) the Indemnified Party shall have reasonably concluded that there may be defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party, or (iv) the Indemnified Party’s counsel shall have advised the Indemnified Party fullest extent provided in writing, with a copy delivered to the Indemnifying Party, that there is a material conflict of interest that could violate applicable standards of professional conduct to have common counsel, then, in each case, such Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise or settle such action, but the Indemnifying Party shall have no liability with respect to a compromise or settlement with respect to such Third Party Claim entered into without its consent (which shall not be unreasonably withheld, conditioned or delayed)this Section 7.
Appears in 1 contract
Matters Involving Third Parties. (a) If any third party shall notify notifies an Indemnified Party with respect to any matter (a “Third Party Claim”) which may give rise to a claim for indemnification against the Indemnifying Parties Party under this Article 8ARTICLE X, other than any claim relating to any inaccuracy as of the Closing Date of a representation or warranty under SECTION 3.19 of this Agreement (a "TAX CLAIM"), then the Indemnified Party shall promptly will notify the Indemnifying Parties (the Representative, if the Securityholders are the Indemnifying Parties) Party thereof promptly and in writingany event within five Business Days after receiving any written notice from a third party; provided, however, provided that no delay on the part of the Indemnified Party in notifying any the Indemnifying Parties shall Party will relieve the Indemnifying Party from any obligation hereunder unless (unless, and then solely to the extent) extent that, the Indemnifying Party is materially prejudiced thereby.
(b) The Indemnifying Parties will have the right, at their sole cost and expense, to defend the Indemnified Party against the Third Party Claim with counsel of the Indemnifying Parties’ choice, reasonably satisfactory to the Indemnified Party, so long as (i) the Indemnifying Parties notify the Indemnified Party, within ten (10) days after . Once the Indemnified Party has given notice of the Third Party Claim matter to the Indemnifying Parties Party, the Indemnified Party may defend against the matter in a manner which it reasonably deems to be appropriate, subject to the following sentence. In the event the Indemnifying Party notifies the Indemnified Party after the date the Indemnified Party has given notice of the matter that the Indemnifying Parties are Party is assuming the defense of such Third matter, (a) the Indemnifying Party Claim and will indemnify defend the Indemnified Party against such Third Party Claim in accordance the matter with the terms and limitations counsel of this Article 8 (but excluding, for this purpose Section 8.2(c) and (ii) the Indemnifying Parties conduct the defense of the Third Party Claim in an active and diligent manner. In the event that the Indemnifying Parties fail its choice reasonably satisfactory to assume the defense or settlement of any Third Party Claim within ten (10) days after notice thereof is given by the Indemnified Party, or fail to conduct the defense in an active and diligent manner, the Indemnified Party shall have the right to undertake the defense, appeal or settlement of such Third Party Claim at the expense and for the account of the Indemnifying Party.
(c) So long as the conditions set forth in Section 8.5(b) are and remain satisfied, then (i) the Indemnifying Parties may conduct the defense of the Third Party Claim in accordance with Section 8.5(b), (ii) the Indemnified Parties may retain separate co counsel at their sole cost and expense and (iii) the Indemnifying Parties will not, without the prior written consent of the Indemnified Parties (which consent shall not be unreasonably withheld or delayed), consent to any admission or the entry of any judgment with respect to the matter, or enter into any settlement which (A) imposes an injunction or other equitable relief upon the Indemnified Party, (B) does not include an unconditional provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all liability with respect thereto or (C) in the reasonable opinion of the Indemnified Party, could have a material adverse effect on its reputation, business, operations, assets, or financial condition.
(d) Notwithstanding the foregoing, if (i) an Indemnified Party determines in good faith that there is a reasonable probability that an action may materially and adversely affect it or its Affiliates other than as a result of monetary damages, (ii) the Indemnifying Party shall not have (A) assumed the defense of the Third Party Claim, (B) conducted the defense in an active and diligent manner, or (C) employed counsel reasonably satisfactory to the Indemnified Party to have charge of such third party action, (iiib) the Indemnified Party shall have reasonably concluded may retain separate counsel at its sole cost and expense (except that there may the Indemnifying Party will be defenses available responsible for the fees and expenses of such separate co-counsel to such the extent the Indemnified Party is advised, in writing by its counsel, that are different from or additional to those available to the counsel the Indemnifying PartyParty has selected has a conflict of interest), or (ivc) the Indemnified Party’s counsel shall have advised the Indemnified Party in writing, with a copy delivered will not consent to the Indemnifying Party, that there is entry of a material conflict of interest that could violate applicable standards of professional conduct to have common counsel, then, in each case, such Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise judgment or settle such action, but the Indemnifying Party shall have no liability with respect to a compromise or settlement with respect to such Third Party Claim entered enter into without its consent (which shall not be unreasonably withheld, conditioned or delayed).any settlement
Appears in 1 contract
Sources: Stock Purchase Agreement (Project Software & Development Inc)
Matters Involving Third Parties. (a) If any third party shall notify Promptly after receipt by an Indemnified Party with respect to under Section 5.2(a) or Section 5.2(b) of notice of the commencement of any matter (claim by a “Third third party against it, such Indemnified Party Claim”) which may give rise to will, if a claim for indemnification is to be made against an Indemnifying Party, give prompt notice to the Indemnifying Parties under this Article 8Party of the commencement of such claim, then but the Indemnified Party shall promptly failure to notify the Indemnifying Parties (the Representative, if the Securityholders are the Indemnifying Parties) thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Parties shall will not relieve the Indemnifying Party from of any obligation hereunder Liability that it may have to any Indemnified Party, except to the extent that the Indemnifying Party demonstrates that the defense of such Proceeding is prejudiced by the Indemnified Party’s failure to give such notice.
(b) If any claim referred to in Section 5.4(a) is brought against an Indemnified Party and it gives notice to the Indemnifying Party of the commencement of such third-party claim, the Indemnifying Party will, unless the claim involves Taxes, be entitled to participate in such third-party claim and, to the extent that it desires (unless (and then solely to the extenti) the Indemnifying Party is prejudiced thereby.
(b) The Indemnifying Parties will have the right, at their sole cost also a party to such third-party claim and expense, to defend the Indemnified Party against determines in good faith and upon advice of counsel that joint representation would be inappropriate, or (ii) the Third Indemnifying Party Claim fails 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 of the Indemnifying Parties’ choice, reasonably satisfactory to the Indemnified PartyParty and, so long as (i) after notice from the Indemnifying Parties notify the Indemnified Party, within ten (10) days after Party to the Indemnified Party has given notice of the Third Party Claim its election to the Indemnifying Parties that the Indemnifying Parties are assuming assume the defense of such Third third-party claim, the Indemnifying Party Claim and will indemnify not, as long as it diligently conducts such defense, be liable to the Indemnified Party against such Third Party Claim in accordance with the terms and limitations of under this Article 8 (but excluding, V for this purpose Section 8.2(c) and (ii) the Indemnifying Parties conduct 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 Third Indemnified Party Claim in an active and diligent mannerconnection with the defense of such third-party claim, other than reasonable costs of investigation. In the event that If the Indemnifying Parties fail Party assumes the defense of a third-party claim, no compromise or settlement of such claims may be effected by the Indemnifying Party without the Indemnified Party’s consent, such consent not to be unreasonably withheld, conditioned or delayed. If notice is given to an Indemnifying Party of the commencement of any third-party claim and the Indemnifying Party does not, within twenty (20) days (or, if earlier, by the tenth day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the Person asserting the claim) after the Indemnified Party’s notice is given, give notice to the Indemnified Party of its election to assume the defense or settlement of any Third Party Claim within ten (10) days after notice thereof is given by the Indemnified Party, or fail to conduct the defense in an active and diligent mannersuch third-party claim, the Indemnified Indemnifying Party shall have the right to undertake the defense, appeal or settlement of will be bound by any determination made in such Third Party Claim at the expense and for the account of the Indemnifying Partythird-party claim.
(c) So long as the conditions set forth in Section 8.5(b) are and remain satisfied, then (i) the Indemnifying Parties may conduct the defense of the Third Party Claim in accordance with Section 8.5(b), (ii) the Indemnified Parties may retain separate co counsel at their sole cost and expense and (iii) the Indemnifying Parties will not, without the prior written consent of the Indemnified Parties (which consent shall not be unreasonably withheld or delayed), consent to any admission or the entry of any judgment with respect to the matter, or enter into any settlement which (A) imposes an injunction or other equitable relief upon the Indemnified Party, (B) does not include an unconditional provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all liability with respect thereto or (C) in the reasonable opinion of the Indemnified Party, could have a material adverse effect on its reputation, business, operations, assets, or financial condition.
(d) Notwithstanding the foregoing, if (i) an Indemnified Party determines in good faith demonstrates that there is a reasonable probability that an action a third-party claim may materially and adversely affect it or its Affiliates other than as a result of monetary damagesdamages for which it would be entitled to indemnification under this Agreement, (ii) the Indemnifying Party shall not have (A) assumed the defense of the Third Party Claim, (B) conducted the defense in an active and diligent manner, or (C) employed counsel reasonably satisfactory to the Indemnified Party to have charge of such third party action, (iii) the Indemnified Party shall have reasonably concluded that there may be defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party, or (iv) the Indemnified Party’s counsel shall have advised the Indemnified Party in writing, with a copy delivered to the Indemnifying Party, that there is a material conflict of interest that could violate applicable standards of professional conduct to have common counsel, then, in each case, such Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise or settle such actionthird-party claim, but the Indemnifying Party shall have no liability with respect to will not be bound by any determination of a third-party claim so defended or any compromise or settlement with respect to such Third Party Claim entered into effected without its consent (which shall may not be unreasonably withheld, conditioned withheld or delayed).
Appears in 1 contract
Matters Involving Third Parties. (a) If any third party shall notify an any Party (the "Indemnified Party Party") with respect to any matter (a “"Third Party Claim”") which that may give rise to a right to claim for indemnification against any other Party (the "Indemnifying Parties Party") under this Article 8Section 8.2 or Section 8.3, then the Indemnified Party shall promptly (and in any event within five business days after receiving notice of the Third Party Claim) notify the Indemnifying Parties Party thereof in writing (the Representative, if the Securityholders are the Indemnifying Parties) thereof in writing"Claim Notice"); provided, however, that no delay on the part of the Indemnified Party in notifying any the Indemnifying Parties Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is adversely affected in its ability to defend against such Claim or is otherwise prejudiced thereby.
(b) The Indemnifying Parties Party will have the right, at their sole cost right to assume and expense, to defend thereafter conduct the Indemnified Party against defense of the Third Party Claim with counsel of the Indemnifying Parties’ choice, its choice reasonably satisfactory to the Indemnified Party, Party so long as (i) the Indemnifying Parties notify Party notifies the Indemnified Party, Party in writing (within ten twenty (1020) days after the Indemnified Party has given notice of the Claim Notice) that the Indemnifying Party will fulfill its indemnification obligations hereunder and provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the Third Party Claim to the Indemnifying Parties that the Indemnifying Parties are assuming the defense of such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in accordance with the terms and limitations of this Article 8 (but excludingfulfill its indemnification obligations hereunder, for this purpose Section 8.2(c) and (ii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief, and (iii) the Indemnifying Parties conduct Party conducts the defense of the Third Party Claim in an active actively and diligent manner. In the event that the Indemnifying Parties fail to assume the defense or settlement of any Third Party Claim within ten (10) days after notice thereof is given by the Indemnified Party, or fail to conduct the defense in an active and diligent manner, the Indemnified Party shall have the right to undertake the defense, appeal or settlement of such Third Party Claim at the expense and for the account of the Indemnifying Partydiligently.
(c) So long as the conditions set forth in Section 8.5(b) are and remain satisfied, then (i) the Indemnifying Parties may conduct Party is conducting the defense of the Third Party Claim in accordance with Section 8.5(b8.4(b), (iii) the Indemnified Parties Party may retain separate co co-counsel at their its sole cost and expense and (iii) the Indemnifying Parties will not, without the prior written consent of the Indemnified Parties (which consent shall not be unreasonably withheld or delayed), consent to any admission or the entry of any judgment with respect to the matter, or enter into any settlement which (A) imposes an injunction or other equitable relief upon the Indemnified Party, (B) does not include an unconditional provision whereby the plaintiff or claimant participate in the matter releases the Indemnified Party from all liability with respect thereto or (C) in the reasonable opinion of the Indemnified Party, could have a material adverse effect on its reputation, business, operations, assets, or financial condition.
(d) Notwithstanding the foregoing, if (i) an Indemnified Party determines in good faith that there is a reasonable probability that an action may materially and adversely affect it or its Affiliates other than as a result of monetary damages, (ii) the Indemnifying Party shall not have (A) assumed the defense of the Third Party Claim, (Bii) conducted the defense in an active and diligent manner, or (C) employed counsel reasonably satisfactory to the Indemnified Party will not consent to have charge the entry of such third party actionany judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnifying Party (not to be withheld unreasonably), and (iii) the Indemnified Indemnifying Party shall have reasonably concluded that there may be defenses available to such Indemnified Party that are different from or additional to those available will not consent to the Indemnifying Party, entry of any judgment or (iv) the Indemnified Party’s counsel shall have advised the Indemnified Party in writing, with a copy delivered to the Indemnifying Party, that there is a material conflict of interest that could violate applicable standards of professional conduct to have common counsel, then, in each case, such Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise or settle such action, but the Indemnifying Party shall have no liability with respect to a compromise or enter into any settlement with respect to such the Third Party Claim entered without the prior written consent of the Indemnified Party, except in the cases involving only money damages which are not likely to establish a precedential custom or practice adverse to the continuing business interests of the Indemnified Party.
(d) In the event any of the conditions in Section 8.4(b) is or becomes unsatisfied, however, (i) the Indemnified Party may defend against, and consent to the entry of any judgment or enter into without its any settlement with respect to, the Third Party Claim only with consent (which shall from the Indemnifying Party not to be unreasonably withheld), conditioned (ii) the Indemnifying Party will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including reasonable attorneys' fees and expenses if the Indemnified Party delivers an undertaking to repay if not ultimately entitled to indemnification), and (iii) the Indemnifying Parties will remain responsible, subject to the terms and limitations set forth in this Article VIII, for any Adverse Consequences the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or delayed)caused by the Third Party Claim to the fullest extent provided in this Agreement.
Appears in 1 contract
Sources: Contribution Agreement (Alpha Natural Resources, Inc.)
Matters Involving Third Parties. (a) If any third party shall notify commence an Action against any Indemnified Party with respect to any matter (a “"Third Party Claim”") which may give rise to a claim for indemnification against the Indemnifying Parties under this Article 8Section 10.1, then the Indemnified Party shall promptly notify the Indemnifying Parties Party in writing as soon as practicable.
(b) The Indemnifying Party shall have the Representativeright to defend the Indemnified Party against the Third Party Claim with counsel of its choice and reasonably acceptable to the Indemnified Party so long as (i) the Indemnifying Party shall notify the Indemnified Party in writing (within 30 days after its receipt of notice, in accordance with Section 12.5, of the Third Party Claim as provided in Section 10.2 or, if the Securityholders are Indemnifying Party has disputed the claim for indemnification, then within ten days of a final determination that such claim is a valid claim under Section 10.1) that the Indemnified Party will be entitled to indemnification under Section 10.1 hereof from and against any Damages the Indemnified Party may suffer arising out of the Third Party Claim and (ii) the Indemnifying Parties) thereof in writing; provided, however, Party diligently conducts the defense of the Third Party Claim. It is agreed that no delay on the part of the Indemnified Party in notifying any Indemnifying Parties shall Party of a claim (including any Third Party Claim) will relieve the Indemnifying Party from any obligation hereunder thereby unless (and then solely to the extent) the said Indemnifying Party is prejudiced thereby.
(b) The Indemnifying Parties will have the right, at their sole cost and expense, by such failure to defend the Indemnified Party against the Third Party Claim with counsel of the Indemnifying Parties’ choice, reasonably satisfactory to the Indemnified Party, so long as (i) the Indemnifying Parties notify the Indemnified Party, within ten (10) days after the Indemnified Party has given notice of the Third Party Claim to the Indemnifying Parties that the Indemnifying Parties are assuming the defense of such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in accordance with the terms and limitations of this Article 8 (but excluding, for this purpose Section 8.2(c) and (ii) the Indemnifying Parties conduct the defense of the Third Party Claim in an active and diligent manner. In the event that the Indemnifying Parties fail to assume the defense or settlement of any Third Party Claim within ten (10) days after notice thereof is given by the Indemnified Party, or fail to conduct the defense in an active and diligent manner, the Indemnified Party shall have the right to undertake the defense, appeal or settlement of such Third Party Claim at the expense and for the account of the Indemnifying Partygive notice.
(c) So long as the conditions set forth in Section 8.5(b) are and remain satisfied, then (i) the Indemnifying Parties may conduct Party is conducting the defense of the Third Party Claim in accordance with Section 8.5(b)10.3(b) above, (i) the Indemnified Party may retain separate co-counsel, at its sole cost and expense, and participate in the defense of the Third Party Claim, (ii) the Indemnified Parties may retain separate co counsel at their sole cost and expense and (iii) Party shall not consent to the Indemnifying Parties will not, entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnified Parties (Indemnifying Party, which consent shall not be unreasonably withheld or delayed), consent to any admission or the entry of any judgment with respect to the matter, or enter into any settlement which (A) imposes an injunction or other equitable relief upon the Indemnified Party, (B) does not include an unconditional provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all liability with respect thereto or (C) in the reasonable opinion of the Indemnified Party, could have a material adverse effect on its reputation, business, operations, assets, or financial condition.
(d) Notwithstanding the foregoing, if (i) an Indemnified Party determines in good faith that there is a reasonable probability that an action may materially and adversely affect it or its Affiliates other than as a result of monetary damages, (ii) the Indemnifying Party shall not have (A) assumed the defense of the Third Party Claim, (B) conducted the defense in an active and diligent manner, or (C) employed counsel reasonably satisfactory to the Indemnified Party to have charge of such third party action, (iii) the Indemnified Party shall have reasonably concluded that there may be defenses available to such Indemnified Party that are different from or additional to those available to cooperate within reason with the Indemnifying Party, or 's defense of such Third Party Claim and (iv) the Indemnified Party’s counsel shall have advised the Indemnified Party in writing, with a copy delivered to the Indemnifying Party, that there is a material conflict of interest that could violate applicable standards of professional conduct to have common counsel, then, in each case, such Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise or settle such action, but the Indemnifying Party shall have no liability with respect not consent to a compromise the entry of any judgment or enter into any settlement with respect to such the Third Party Claim entered into without its the prior written consent (of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned withheld or delayed).
Appears in 1 contract
Sources: Merger Agreement (Pharmacity Corp)
Matters Involving Third Parties. (a) If any third party shall notify an any Indemnified Party with respect to any matter (a “Third Party Claim”) which may give rise to a claim for indemnification against the an Indemnifying Parties Party under this Article 8XII, then the Indemnified Party shall promptly notify the Indemnifying Parties (the Representative, if the Securityholders are the Indemnifying Parties) Party thereof in writing; provided, however, that no delay on the part failure to so notify an Indemnifying Party shall not affect the rights of the Indemnified Party in notifying any Indemnifying Parties shall relieve the Indemnifying Party from any obligation to indemnity hereunder unless (and then solely except to the extent) extent the Indemnifying Party is prejudiced therebyby such failure.
(b) The Except as otherwise provided by Article VIII with respect to a proceeding with respect to a Tax Claim relating to Taxes for which Sellers or their Affiliates may be liable and subject to Section 12.4(d), the Indemnifying Parties will Party shall have the right, at their sole cost and expense, right to defend the Indemnified Party against the Third Party Claim with counsel of the Indemnifying Parties’ Party’s choice, reasonably satisfactory to the Indemnified Party, so long as (i) the Indemnifying Parties notify Party notifies the Indemnified Party, within ten (10) 15 days after the Indemnified Party has given notice of the Third Party Claim to the Indemnifying Parties Claim, that the Indemnifying Parties are Party is assuming the defense of such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in accordance with the terms and limitations of this Article 8 (but excluding, for this purpose Section 8.2(c) and (ii) the Indemnifying Parties conduct Party conducts the defense of the Third Party Claim in an active and diligent manner. In the event that the Indemnifying Parties fail Party fails to assume the defense or settlement of any Third Party Claim within ten (10) 15 days after receipt of notice thereof is given by of the Indemnified Party, or fail to conduct the defense in an active and diligent mannerThird Party Claim, the Indemnified Party shall have the right to undertake the defense, appeal or settlement defense of such Third Party Claim at the expense and for the account of the Indemnifying PartyParty in accordance with this Article XII.
(c) So long as the conditions set forth in Section 8.5(b12.4(b) are and remain satisfied, then (i) the Indemnifying Parties Party may conduct the defense of the Third Third-Party Claim in accordance with Section 8.5(b12.4(b), (ii) the Indemnified Parties Party may retain separate co co-counsel at their its sole cost and expense to represent it in connection with the Third Party Claim and the Indemnifying Party shall cooperate, and cause the counsel selected by the Indemnifying Party, to cooperate with such co-counsel in connection with the response, defense and settlement of such Third Party Claim and any related suit or proceeding and (iii) the Indemnifying Parties will Party shall not, without the prior written consent of the Indemnified Parties Party (which consent shall not be unreasonably withheld or delayed), consent to any admission or the entry of any judgment with respect to the matter, or enter into any settlement which (A) imposes an injunction or other equitable relief upon the Indemnified Party, Party or (B) does not include an unconditional provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all liability with respect thereto or (C) in the reasonable opinion of the Indemnified Party, could have a material adverse effect on its reputation, business, operations, assets, or financial conditionto such matter.
(d) Notwithstanding anything in this Section 12.4 to the foregoingcontrary, Sellers shall not have the right to assume the defense of any Third Party Claim against the Buyer or any of its Affiliates, including the Acquired Entities, in respect of which the Buyer Indemnified Parties may be entitled to indemnity in accordance with this Article XII if such Third Party Claim (i) an Indemnified Party determines in good faith that there is a reasonable probability that an action may materially and adversely affect it or its Affiliates other than involves as a result claimant a client or customer or supplier listed in Section 4.14 of monetary damagesthe Seller Disclosure Letter, (ii) the Indemnifying Party shall not have (A) assumed the defense of the Third Party Claim, (B) conducted the defense in an active and diligent manner, is a criminal investigation or (C) employed counsel reasonably satisfactory to the Indemnified Party to have charge of such third party action, proceeding or (iii) involves any other investigation or inquiry by any Governmental Authority. In each such case, the Indemnified Party Buyer (on its own behalf or on behalf of any other Buyer Indemnitees if such claim, assertion, action or proceeding involves another Buyer Indemnitee) shall have direct, through counsel of its own choosing reasonably concluded that there may be defenses available to such Indemnified Party that are different from or additional to those available acceptable to the Indemnifying PartySellers, the response to, defense of or (iv) the Indemnified Party’s counsel shall have advised the Indemnified Party in writingsettlement of any such claim, with a copy delivered to the Indemnifying Partyassertion, that there is a material conflict of interest that could violate applicable standards of professional conduct to have common counselinvestigation, theninquiry, in each case, such Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise action or settle such actionproceeding, but the Indemnifying Party cost thereof and any other Loss resulting therefrom shall have no liability be a Buyer Indemnifiable Loss in accordance with respect to a compromise or settlement with respect to such Third Party Claim entered into the Article XII. The Buyer Indemnitee shall not, however, without its the prior written consent of the Sellers (which consent shall not be unreasonably withheld, conditioned withheld or delayed), consent to the entry of any judgment with respect to any such matter or enter into any settlement thereof if Sellers are required to provide indemnity hereunder with respect to any Loss resulting from such judgment or settlement. Buyer shall consult with Sellers for the purpose of allowing Sellers to participate in the response, defense or settlement of any such claim, assertion, investigation, inquiry, action or proceeding, but in such case, the expenses of Sellers, including the fees and disbursements of its counsel, shall be paid by Sellers. If Sellers shall determine to be represented by counsel in connection with any such claim, assertion, investigation, inquiry action or proceeding, the Buyer Indemnitee shall cooperate, and cause the counsel representing it in such proceeding to cooperate, with counsel representing Sellers in such proceeding and Buyer shall provide and shall cause its Subsidiaries to provide (during normal business hours) Sellers and their counsel with reasonable access to the records and personnel of the Acquired Entities and Buyer relating to any such claim, assertion, investigation, inquiry, action or proceeding as to which Sellers may be required to provide indemnity hereunder to the extent reasonable for Sellers to participate in the response, defense or settlement thereof.
Appears in 1 contract
Matters Involving Third Parties. (a) If any third party shall notify Promptly after receipt by an Indemnified Party with respect to under Section 6.2(a), Section 6.2(b) or Section 6.2(c) of notice of the commencement of any matter (claim by a “Third third party against it, such Indemnified Party Claim”) which may give rise to will, if a claim for indemnification is to be made against an Indemnifying Party, give prompt notice to the Indemnifying Parties under this Article 8Party of the commencement of such claim, then but the Indemnified Party shall promptly failure to notify the Indemnifying Parties (the Representative, if the Securityholders are the Indemnifying Parties) thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Parties shall will not relieve the Indemnifying Party from of any obligation hereunder Liability that it may have to any Indemnified Party, except to the extent that the Indemnifying Party demonstrates that the defense of such Proceeding is materially prejudiced by the Indemnified Party’s failure to give such notice.
(b) If any claim referred to in Section 6.4(a) is brought against an Indemnified Party and it gives notice to the Indemnifying Party of the commencement of such third-party claim, the Indemnifying Party will, unless the claim involves Taxes, be entitled to participate in such third-party claim and, to the extent that it desires (unless (and then solely to the extenti) the Indemnifying Party is prejudiced thereby.
(b) The Indemnifying Parties will have the right, at their sole cost also a party to such third-party claim and expense, to defend the Indemnified Party against the Third Party Claim with counsel of the Indemnifying Parties’ choicedetermines in good faith that joint representation would be inappropriate, reasonably satisfactory to the Indemnified Party, so long as (i) the Indemnifying Parties notify the Indemnified Party, within ten (10) days after the Indemnified Party has given notice of the Third Party Claim to the Indemnifying Parties that the Indemnifying Parties are assuming the defense of such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in accordance with the terms and limitations of this Article 8 (but excluding, for this purpose Section 8.2(c) and or (ii) the Indemnifying Parties conduct Party fails to provide reasonable assurance to the defense Indemnified Party of the Third Party Claim in an active its financial capacity to defend such third-party claim and diligent manner. In the event that the Indemnifying Parties fail 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 and, after notice from the Indemnifying Party to the Indemnified Party of its election to assume the defense of such third-party claim, the Indemnifying Party will not, as long as it diligently conducts such defense, be liable to the Indemnified Party under this Article VI 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. If the Indemnifying Party assumes the defense of a third-party claim: (i) it will be conclusively established for purposes of this Agreement that the claims made in that third-party claim are within the scope of and subject to indemnification; (ii) no compromise or settlement of such claims may be effected by the Indemnifying Party without the Indemnified Party’s consent unless (A) there is no finding or admission of any Third Party Claim within ten (10) days after notice thereof is given by violation of Laws or any violation of the rights of any Person and no effect on any other claims that may be made against the Indemnified Party, or fail to conduct (B) the defense sole relief provided is monetary damages that are paid in an active full by the Indemnifying Party, and diligent manner, (C) the Indemnified Party shall have the right to undertake the defense, appeal or settlement of is fully released from such Third Party Claim at the expense and for the account of the Indemnifying Party.
(c) So long as the conditions set forth in Section 8.5(b) are and remain satisfied, then (i) the Indemnifying Parties may conduct the defense of the Third Party Claim in accordance with Section 8.5(b), (ii) the Indemnified Parties may retain separate co counsel at their sole cost and expense claim; and (iii) the Indemnified Party will have no Liability with respect to any compromise or settlement of such claims effected without its consent, such consent not to be unreasonably withheld or delayed. If notice is given to an Indemnifying Parties will Party of the commencement of any third-party claim and the Indemnifying Party does not, without within twenty (20) days (or, if earlier, by the prior written consent 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 the claim) after the Indemnified Parties Party’s notice is given, give notice to the Indemnified Party of its election to assume the defense of such third-party claim, the Indemnifying Party will be bound by any determination made in such third-party claim. Notwithstanding the foregoing, the Indemnifying Party shall not be bound by any compromise or settlement effected by the Indemnified Party without its consent (which consent shall may not be unreasonably withheld or delayed), consent to any admission or the entry of any judgment with respect to the matter, or enter into any settlement which (A) imposes an injunction or other equitable relief upon the Indemnified Party, (B) does not include an unconditional provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all liability with respect thereto or (C) in the reasonable opinion of the Indemnified Party, could have a material adverse effect on its reputation, business, operations, assets, or financial condition.
(dc) Notwithstanding the foregoing, if (i) an Indemnified Party determines in good faith demonstrates that there is a reasonable probability that an action a third-party claim may materially and adversely affect it or its Affiliates other than as a result of monetary damagesdamages for which it would be entitled to indemnification under this Agreement, (ii) the Indemnifying Party shall not have (A) assumed the defense of the Third Party Claim, (B) conducted the defense in an active and diligent manner, or (C) employed counsel reasonably satisfactory to the Indemnified Party to have charge of such third party action, (iii) the Indemnified Party shall have reasonably concluded that there may be defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party, or (iv) the Indemnified Party’s counsel shall have advised the Indemnified Party in writing, with a copy delivered to the Indemnifying Party, that there is a material conflict of interest that could violate applicable standards of professional conduct to have common counsel, then, in each case, such Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise or settle such actionthird-party claim, but the Indemnifying Party shall have no liability with respect to will not be bound by any determination of a third-party claim so defended or any compromise or settlement with respect to such Third Party Claim entered into effected without its consent (which shall may not be unreasonably withheld, conditioned withheld or delayed).
Appears in 1 contract
Matters Involving Third Parties. (a) If any third party shall notify an notifies any Indemnified Party with respect to any matter (a “Third Party Claim”) which may give rise to a claim for indemnification against the Indemnifying Parties Party under this Article 8IX, then the Indemnified Party shall must promptly after receipt of notice of the Third Party Claim notify the Indemnifying Parties (the Representative, if the Securityholders are the Indemnifying Parties) Party thereof in writing; provided. Such notice shall state the nature and basis of such Third Party Claim and the amount thereof to the extent known, howeverand shall be accompanied by copies of all relevant documentation with respect to such Third Party Claim, that including without limitation, any summons, complaint or other pleading which may have been served, any written demand or other document or instrument. Notwithstanding the foregoing, no delay on the part of the Indemnified Party in notifying any the Indemnifying Parties Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extentextent that) the Indemnifying Party is materially prejudiced thereby.
(b) The Indemnifying Parties will Party shall have the right, at their sole cost and expense, right to defend the Indemnified Party against the Third Party Claim with counsel of the Indemnifying Parties’ Party’s choice, reasonably satisfactory to the Indemnified Party, so long as as: (i) the Indemnifying Parties notify Party notifies the Indemnified Party, within ten twenty (1020) days after the Indemnified Party has given notice of the Third Party Claim to the Indemnifying Parties Party, that the Indemnifying Parties are Party is assuming the defense of such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in accordance with the terms and limitations of this Article 8 (but excluding, for this purpose Section 8.2(c) Claim; and (ii) the Indemnifying Parties conduct Party conducts the defense of the Third Party Claim in an active and diligent manner. In the event that the Indemnifying Parties fail Party fails to assume the defense or settlement of any Third Party Claim within ten twenty (1020) days after notice thereof is given by the Indemnified Party, Party or fail fails to conduct the such defense in an active and diligent manner, the Indemnified Party shall have the right to undertake the defense, appeal or settlement defense of such Third Party Claim at the expense and for the account of the Indemnifying Party.
(c) So long as the conditions set forth in Section 8.5(b9.5(b) are and remain satisfied, then then: (i) the Indemnifying Parties Party may conduct the defense of the Third Party Claim in accordance with Section 8.5(b9.5(b), ; (ii) the Indemnified Parties Party may retain separate co co-counsel at their the Indemnified Party’s sole cost and expense expense; and (iii) the Indemnifying Parties will Party shall not, without the prior written consent of the Indemnified Parties Party (which consent shall may not be unreasonably withheld or delayed), consent to any admission or the entry of any judgment with respect to the matter, or enter into any settlement which (A) imposes an injunction or other equitable relief upon the Indemnified Party, (B) does not include an unconditional provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all liability with respect thereto or (C) in the reasonable opinion includes any statement to or an admission of fact, culpability or failure to act by or on behalf of the Indemnified Party or any of its Affiliates.
(d) Notwithstanding the above, the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at the Indemnifying Party’s own expense in the defense of), could and the Indemnified Party shall be entitled to have a material adverse effect on its reputationsole control over, the defense or settlement, compromise, admission, or acknowledgment of any Third Party Claim: (i) as to which the Indemnifying Party fails to assume the defense within twenty (20) days after the Indemnified Party gives notice thereof to the Indemnifying Party or which, following {N0221423 } 69 assumption, the Indemnifying Party fails to actively and diligently defend; (ii) to the extent the Third Party Claim seeks an Order or other equitable relief against the Indemnified Party which, if successful, would adversely affect the business, operations, assets, or financial condition.
condition of the Indemnified Party; (diii) Notwithstanding in the foregoing, if (i) an Indemnified Party determines in good faith that there case where the Seller is a reasonable probability that an action may materially and adversely affect it or its Affiliates other than as a result of monetary damages, (ii) the Indemnifying Party shall not have (A) assumed and the defense Indemnifiable Losses claimed in connection therewith involve an amount in excess of the Third Party Claim, (B) conducted amount then available for indemnification in light of the defense limitations set forth in an active and diligent manner, or (C) employed counsel reasonably satisfactory to the Indemnified Party to have charge of such third party action, (iii) the Indemnified Party shall have reasonably concluded that there may be defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party, or Section 9.3; (iv) which relates to or arises in connection with any criminal matter; (v) which relates to the Indemnified Party’s counsel shall customers, suppliers, vendors or other business relations and would reasonably be expected to have advised a material and adverse effect on the Indemnified Party in writing, with a copy delivered Party’s business; (vi) as to the Indemnifying Party, that there is a material conflict of interest that could violate applicable standards of professional conduct to have common counsel, then, in each case, such Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise or settle such action, but which the Indemnifying Party shall have no liability with respect has failed or is failing to a compromise or settlement with respect to defend in good faith; (vii) where such Third Party Claim entered into is an insured event under any policy of insurance then maintained by the Indemnified Party; or (viii) as to which the Indemnifying Party has not acknowledged that such Third Party Claim is subject to indemnification pursuant to this Article IX; provided, however, that the Indemnified Party may make no settlement, compromise, admission, or acknowledgment that would give rise to any liability on the part of the Indemnifying Party without its the prior written consent of the Indemnifying Party (which shall consent may not be unreasonably withheld, conditioned or delayed).
Appears in 1 contract
Matters Involving Third Parties. (a) If any third party shall notify an any Party (the "Indemnified Party Party") with respect to any matter (a “"Third Party Claim”") which may give rise to a claim for indemnification against any other Party (the "Indemnifying Parties Party") under this Article 8XII, then the Indemnified Party shall promptly notify each Indemnifying Party thereof, in writing stating the Indemnifying Parties nature and basis of such claims and the amount thereof, to the extent known; provided that
(i) if any member of the RepresentativeGlobe Group is the Indemnified Party, such member of the Globe Group shall promptly notify the Company Shareholders, and
(ii) if any of the Securityholders are Company Shareholders is the Indemnifying Parties) thereof in writingIndemnified Party, then such Company Shareholder shall notify the Globe Group; and provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Parties Party in accordance with the notice provisions of Sections 14.3 and/or this Section 12.5 shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party thereby is prejudiced therebymaterially prejudiced.
(b) The Any Indemnifying Parties Party will have the right, at their sole cost and expense, to defend right by notifying the Indemnified Party against in writing to assume the defense of the Third Party Claim with counsel of the his or her or its choice, at such Indemnifying Parties’ choiceParty's sole cost and expense, reasonably satisfactory to the Indemnified Party, so long as (i) the Indemnifying Parties notify the Indemnified Party, Party at any time within ten (10) 15 days after the Indemnified Party has given notice of the Third Party Claim to the Indemnifying Parties Claim; provided, however, that the Indemnifying Parties are assuming the defense of such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in accordance with the terms and limitations of this Article 8 (but excluding, for this purpose Section 8.2(c) and (ii) the Indemnifying Parties must conduct the defense of the Third Party Claim actively and diligently thereafter in an active order to preserve its rights in this regard, and diligent manner. In in the event that the Indemnifying Parties fail to assume the defense or settlement of any Third Party Claim within ten (10) days after notice thereof is given by the Indemnified PartyTax proceeding, or fail it shall have furnished to conduct the defense in an active and diligent manner, the Indemnified Party shall have such assurance reasonably acceptable to the right Indemnified Party regarding its ability to undertake satisfy any indemnification obligation; and provided further that the defense, appeal or settlement Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of such the Third Party Claim at the expense and for the account of the Indemnifying PartyClaim.
(c) So long as the conditions set forth in Section 8.5(b) are Indemnifying Party has assumed and remain satisfied, then (i) the Indemnifying Parties may conduct is conducting the defense of the Third Party Claim in accordance with Section 8.5(b), 12.5 above,
(ii) the Indemnified Parties may retain separate co counsel at their sole cost and expense and (iiii) the Indemnifying Parties Party will not, not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnified Parties (Party, which consent shall not be withheld unreasonably withheld unless the judgment or delayed), consent to any admission proposed settlement involves only the payment of money damages by one or more of the entry of any judgment with respect to the matter, or enter into any settlement which (A) imposes Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party, and
(Bii) does not include an unconditional provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all liability will not consent to the entry of any judgment or enter into any settlement with respect thereto or to the Third Party Claim without the prior written consent of the Indemnifying Party (C) not to be withheld unreasonably); provided, however, in the reasonable opinion event of a Tax proceeding, if the resolution of the Indemnified Party, issues could have a material adverse the effect on its reputation, business, operations, assetsof increasing the Tax liabilities of, or financial conditionattributable to, the Company or Merger Sub in a post-closing Tax period and the Company Shareholders have not agreed to indemnify the Globe Group fully for such increase, the Company Shareholders shall afford the Globe Group the opportunity to control jointly the conduct and resolution of the portion of such Tax proceeding that could have the effect of increasing the Tax liabilities of, or attributable to, the Company or Merger Sub in a post-closing Tax period. If the Globe Group shall decline, in writing, to participate in the control of the conduct of such Tax proceeding, the Company Shareholders shall have the right to control the conduct of such Tax proceeding, provided that the Company Shareholders shall not resolve such Tax proceeding without the Globe Group's written consent, which shall not be unreasonably withheld.
(d) Notwithstanding In the foregoing, if (i) an Indemnified Party determines in good faith event that there is a reasonable probability that an action may materially and adversely affect it or its Affiliates other than as a result none of monetary damages, (ii) the Indemnifying Party shall not have (A) assumed Parties assumes and conducts the defense of the Third Party Claim, Claim in accordance with Section 12.5 above,
(B) conducted the defense in an active and diligent manner, or (C) employed counsel reasonably satisfactory to the Indemnified Party to have charge of such third party action, (iiii) the Indemnified Party shall have reasonably concluded that there may be defenses available to such Indemnified Party that are different from or additional to those available defend against, and consent to the Indemnifying Partyentry of any judgment or enter into any settlement with respect to, the Third Party Claim in any manner he or it reasonably may deem appropriate (iv) the Indemnified Party’s counsel shall have advised and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in writingconnection therewith), with a copy delivered to and
(ii) the Indemnifying PartyParties will remain responsible for any Damages the Indemnified Party may suffer resulting from, that there is a material conflict of interest that could violate applicable standards of professional conduct to have common counselarising out of, thenrelating to, in each casethe nature of, such Indemnified Party may, or caused by notice to the Indemnifying Party, assume the exclusive right to defend, compromise or settle such action, but the Indemnifying Party shall have no liability with respect to a compromise or settlement with respect to such Third Party Claim entered into to the fullest extent provided in this Article XII.
(e) Nothing herein shall limit the authority of the Shareholders' Representative to settle the Globe Group Claims arising out of Section 12.2(a) hereof on behalf of the Company Shareholders without its the consent (which of, or notice to, such Company Shareholders, nor shall not the Globe be unreasonably withheldrequired to give notice of any the Globe Claim to any Person other than the Shareholders' Representative to the extent such the Globe Claim arises out of Section 12.2(a) hereof. With regard to any the Globe Claim arising out of Section 12.2(b) hereof, conditioned the Globe shall give notice of such Claim to the affected Company Shareholder or delayed)Company Shareholders.
Appears in 1 contract
Sources: Merger Agreement (Theglobe Com Inc)
Matters Involving Third Parties. (ai) If any third party shall notify an any party(ies) to this Agreement (the “Indemnified Party Party”) with respect to any matter (a “Third Party Claim”) which may give rise to a claim for indemnification against the other party(ies) to this Agreement (the “Indemnifying Parties Party”) under this Article Section 8, then the Indemnified Party Party’s representative shall promptly notify the Indemnifying Parties (the Representative, if the Securityholders are the Indemnifying Parties) Party’s representative thereof in writing; provided, however, that no delay on the part of the Indemnified Party Party’s representative in notifying any the Indemnifying Parties Party’s representative shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party thereby is prejudiced therebymaterially prejudiced.
(bii) The Indemnifying Parties Party will have the right, at their sole cost and expense, right to defend the Indemnified Party against the Third Party Claim with counsel of the Indemnifying Parties’ choice, its choice reasonably satisfactory to the Indemnified Party, Party so long as (iA) the Indemnifying Parties notify Party notifies the Indemnified Party, Party in writing within ten twenty (1020) days after the Indemnified Party has given notice of the Third Party Claim to the Indemnifying Parties that the Indemnifying Parties are assuming the defense of such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in accordance with the terms and limitations of this Article 8 (but excluding, for this purpose Section 8.2(c) and (ii) the Indemnifying Parties conduct assume the defense of the Third Party Claim (but in all events, at least five Business Days prior to the date that an active and diligent manner. In the event that the Indemnifying Parties fail answer to assume the defense or settlement of any Third Party Claim within ten (10) days after notice thereof is given by the Indemnified Party, or fail to conduct the defense in an active and diligent manner, the Indemnified Party shall have the right to undertake the defense, appeal or settlement of such Third Party Claim at is due to be filed); provided that the expense and for the account assumption of such defense will not be deemed a waiver of the Indemnifying Party’s right to contest it’s obligation to provide any indemnity hereunder, and (B) the Indemnifying Party conducts the defense of the Third Party Claim actively and diligently.
(ciii) So long as the conditions set forth in Section 8.5(b) are and remain satisfied, then (i) the Indemnifying Parties may conduct Party is conducting the defense of the Third Party Claim in accordance with Section 8.5(b)8(d)(ii) above, (iiA) the Indemnified Parties Party may retain separate co counsel at their its sole cost and expense and participate in (iiibut not control) the Indemnifying Parties will not, without the prior written consent of the Indemnified Parties (which consent shall not be unreasonably withheld or delayed), consent to any admission or the entry of any judgment with respect to the matter, or enter into any settlement which (A) imposes an injunction or other equitable relief upon the Indemnified Party, (B) does not include an unconditional provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all liability with respect thereto or (C) in the reasonable opinion of the Indemnified Party, could have a material adverse effect on its reputation, business, operations, assets, or financial condition.
(d) Notwithstanding the foregoing, if (i) an Indemnified Party determines in good faith that there is a reasonable probability that an action may materially and adversely affect it or its Affiliates other than as a result of monetary damages, (ii) the Indemnifying Party shall not have (A) assumed the defense of the Third Party Claim, (B) conducted the defense in an active Indemnified Party will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnifying Party (not to be withheld unreasonably), and diligent manner, or (C) employed counsel reasonably satisfactory the Indemnifying Party will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnified Party (not to be withheld unreasonably) (unless the claimant provides to the Indemnified Party an unqualified release from all liability in respect of the Third Party Claim and any such settlement contains no provisions that will have materially impacted the Business).
(iv) In the event either of the conditions in Section 8(d)(ii) above is or becomes unsatisfied or the Indemnifying Party does not seek to have charge of such third party actiondefend the Third Party Claim, however, (iiiA) the Indemnified Party shall have reasonably concluded that there may be defenses available to such Indemnified Party that are different from or additional to those available defend against, and consent to the Indemnifying Partyentry of any judgment or enter into any settlement with respect to, or the Third Party Claim in any manner it reasonably may deem appropriate (iv) the Indemnified Party’s counsel shall have advised and the Indemnified Party in writingneed not consult with, with a copy delivered to the Indemnifying Partyor obtain any consent from, that there is a material conflict of interest that could violate applicable standards of professional conduct to have common counsel, then, in each case, such Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise or settle such action, but the Indemnifying Party shall have no liability with respect to a compromise or settlement with respect to such in connection therewith), (B) the Indemnifying Party will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim entered into without its consent (which shall not be unreasonably withheldincluding reasonable attorneys’ fees and expenses), conditioned and (C) the Indemnifying Party will remain responsible for any Adverse Consequences the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or delayed)caused by the Third Party Claim to the fullest extent provided in this Section 8.
Appears in 1 contract
Sources: Asset Purchase Agreement (Synovis Life Technologies Inc)
Matters Involving Third Parties. (ai) If any third party shall notify an any Party (the "Indemnified Party Party") with respect to any matter (a “"Third Party Claim”") which may give rise to a claim for indemnification against the other Party (the "Indemnifying Parties Party") under this Article 8Section8, then the Indemnified Party shall promptly (and in any event within ten (10) business days after receiving notice of the Third Party Claim) notify the Indemnifying Parties (the Representative, if the Securityholders are the Indemnifying Parties) Party thereof in writing; provided, however, that no . Any delay on the part of more than ten (10) business days by the Indemnified Party in notifying any the Indemnifying Parties Party of a Third Party Claim shall not relieve the Indemnifying Party from any obligation its obligations hereunder unless (and then solely to the extent) extent the Indemnifying Party is prejudiced therebyby the delay.
(bii) The Indemnifying Parties Party will have the rightright to assume and thereafter conduct, at their sole cost and its own expense, to defend the Indemnified Party against defense of the Third Party Claim with counsel of the Indemnifying Parties’ choice, its choice reasonably satisfactory to the Indemnified Party; provided, so long as (i) however, that the Indemnifying Parties notify Party will not consent to the Indemnified Party, within ten (10) days after the Indemnified Party has given notice entry of any judgment or enter into any settlement with respect to the Third Party Claim to the Indemnifying Parties that the Indemnifying Parties are assuming the defense of such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in accordance with the terms and limitations of this Article 8 (but excluding, for this purpose Section 8.2(c) and (ii) the Indemnifying Parties conduct the defense of the Third Party Claim in an active and diligent manner. In the event that the Indemnifying Parties fail to assume the defense or settlement of any Third Party Claim within ten (10) days after notice thereof is given by the Indemnified Party, or fail to conduct the defense in an active and diligent manner, the Indemnified Party shall have the right to undertake the defense, appeal or settlement of such Third Party Claim at the expense and for the account of the Indemnifying Party.
(c) So long as the conditions set forth in Section 8.5(b) are and remain satisfied, then (i) the Indemnifying Parties may conduct the defense of the Third Party Claim in accordance with Section 8.5(b), (ii) the Indemnified Parties may retain separate co counsel at their sole cost and expense and (iii) the Indemnifying Parties will not, without the prior written consent of the Indemnified Parties Party (which consent shall not to be unreasonably withheld or delayed), consent to any admission delayed unreasonably) unless the judgment or proposed settlement involves only the entry payment of any judgment with respect to the matter, or enter into any settlement which (A) imposes money damages and does not impose an injunction or other equitable relief upon the Indemnified PartyParty and does not, (B) does not include an unconditional provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all liability with respect thereto or (C) in the reasonable opinion judgment of the board of directors of the Indemnified Party, could have establish a material precedent materially adverse effect on its reputation, business, operations, assets, or financial condition.
(d) Notwithstanding to the foregoing, if (i) an Indemnified Party. The Indemnified Party determines shall be entitled to employ separate counsel at its expense to participate in good faith that there is a reasonable probability that an action may materially and adversely affect it or its Affiliates other than as a result of monetary damages, (ii) the Indemnifying Party shall not have (A) assumed the defense of the Third Party Claim, .
(Biii) conducted In the event the Indemnifying Party does not assume the defense of the Third Party Claim as provided in an active and diligent mannerSection8(d)(ii), or (C) employed counsel reasonably satisfactory to the Indemnified Party may defend against the Third Party Claim in any manner it reasonably may deem appropriate. and the Indemnifying Party shall, in addition to have charge of such third party actionits other obligations, (iii) reimburse the Indemnified Party shall have reasonably concluded that there may be defenses available to such Indemnified Party that are different from or additional to those available to monthly for the Indemnifying Partycosts and expenses, or (iv) the Indemnified Party’s counsel shall have advised including reasonable attorney fees, incurred by the Indemnified Party in writing, with a copy delivered the defense of the Third Party Claim.
(iv) In no event will the Indemnified Party consent to the Indemnifying Party, that there is a material conflict entry of interest that could violate applicable standards of professional conduct to have common counsel, then, in each case, such Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise any judgment or settle such action, but the Indemnifying Party shall have no liability with respect to a compromise or enter into any settlement with respect to such the Third Party Claim entered into without its the prior written consent of the Indemnifying Party (which shall not to be unreasonably withheld, conditioned withheld or delayeddelayed unreasonably).
Appears in 1 contract
Sources: Share Subscription and Redemption Agreement (Valcor Inc)
Matters Involving Third Parties. (ai) If any third party shall notify an Indemnified any Party (the "INDEMNIFIED PARTY") with respect to any matter (a “Third Party Claim”) "THIRD PARTY CLAIM" which may give rise to a claim for indemnification against any other Party (the Indemnifying Parties "INDEMNIFYING PARTY") under this Article 8section 9, then the Indemnified Party shall promptly notify the each Indemnifying Parties (the Representative, if the Securityholders are the Indemnifying Parties) Party thereof in writing; writing within ten (10) days after the Indemnified Party has Knowledge thereof, provided, however, that no delay on the part of Indemnified Party's failure timely to provide such notice shall not bar the Indemnified Party's right to indemnification hereunder if the Indemnified Party in notifying any Indemnifying Parties shall relieve can establish that such failure has not materially prejudiced the Indemnifying Party from any obligation hereunder unless (and then solely Party's ability to defend the extent) the Indemnifying Party is prejudiced therebyclaim or proceeding.
(bii) The Any Indemnifying Parties Party will have the right, at their its sole cost and expense, to defend assume the Indemnified Party against defense of the Third Party Claim with counsel of the Indemnifying Parties’ choice, his or its choice reasonably satisfactory to the Indemnified Party, so long as (i) the Indemnifying Parties notify the Indemnified Party, Party at any time within ten (10) business days after the Indemnified Party has given notice of the Third Party Claim to the Indemnifying Parties Claim; PROVIDED, HOWEVER, that the Indemnifying Parties are assuming Party shall not have the right to control the defense of any such Third Party Claim and will claim or proceeding unless it has acknowledged in writing its obligation to indemnify the Indemnified Party against from liability arising from such claim or proceeding pursuant to this section 9 (subject to any applicable limitations set forth in items (A) and (B) of subsections 9(b) and 9(c) above), and then, and periodically thereafter, provides the Indemnified Party with reasonably sufficient evidence of the ability of the Indemnifying Party to satisfy its obligations under this section 9 with respect to such Third Party Claim in accordance with Claim. In the terms and limitations of this Article 8 (but excluding, for this purpose Section 8.2(c) and (ii) event that the Indemnifying Parties Party assumes the defense as set forth hereunder, the Indemnifying Party shall conduct the defense of the Third Party Claim with reasonable diligence thereafter. The Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in an active and diligent manner. In the event that the Indemnifying Parties fail to assume the defense or settlement of any the Third Party Claim within ten (10) days after notice thereof is given by the Indemnified Claim; provided that Indemnifying Party's counsel will consult with such co-counsel, or fail to conduct the defense but shall remain in an active and diligent manner, the Indemnified Party shall have the right to undertake the defense, appeal or settlement sole control of such Third Party Claim at the expense and for the account of the Indemnifying Partyaction.
(ciii) So long as the conditions set forth in Section 8.5(b) are Indemnifying Party has assumed and remain satisfied, then (i) the Indemnifying Parties may conduct is conducting the defense of the Third Party Claim in accordance with Section 8.5(b)section 9(d)(ii) above, (ii) the Indemnified Parties may retain separate co counsel at their sole cost and expense and (iiiA) the Indemnifying Parties Party will not, not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnified Party (not to be withheld, conditioned or delayed unreasonably) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties (which consent shall and does not be unreasonably withheld or delayed), consent to impose any admission or the entry of any judgment with respect to the matter, or enter into any settlement which (A) imposes an material injunction or other equitable relief upon the Indemnified Party, Party and (B) does not include an unconditional provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all liability will not consent to the entry of any judgment or enter into any settlement with respect thereto or (C) in to the reasonable opinion Third Party Claim without the prior written consent of the Indemnified PartyIndemnifying Party (not to be withheld, could have a material adverse effect on its reputation, business, operations, assets, conditioned or financial conditiondelayed unreasonably).
(div) Notwithstanding In the foregoingevent none of the Indemnifying Parties assumes and conducts the defense of the Third Party Claim in accordance with section 9(d)(ii) above, if however, (iA) an the Indemnified Party determines may defend against the Third Party Claim in good faith any manner he or it reasonably may deem appropriate; provided that there is a the Indemnified Party shall conduct the defense of the Third Party Claim with reasonable probability that an action diligence and (B) the Indemnifying Parties will remain responsible for any Adverse Consequences the Indemnified Party may materially and adversely affect it suffer resulting from, arising out of, relating to, in the nature of, or its Affiliates other than as a result of monetary damages, caused by the Third Party Claim to the extent provided in this section 9. In such event (ii1) the Indemnifying Party shall not have (A) assumed may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third Party Claim, (B) conducted the defense in an active and diligent manner, or (C) employed counsel reasonably satisfactory to the Indemnified Party to have charge Party's counsel will consult with such co-counsel but shall remain in sole control of such third party actionproceeding, and (iii2) the Indemnified Party shall have reasonably concluded that there may be defenses available to such Indemnified Party that are different from or additional to those available will not consent to the Indemnifying Party, entry of any judgment or (iv) the Indemnified Party’s counsel shall have advised the Indemnified Party in writing, with a copy delivered to the Indemnifying Party, that there is a material conflict of interest that could violate applicable standards of professional conduct to have common counsel, then, in each case, such Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise or settle such action, but the Indemnifying Party shall have no liability with respect to a compromise or enter into any settlement with respect to such the Third Party Claim entered into without its the prior written consent of the Indemnifying Party (which shall not to be unreasonably withheld, conditioned or delayeddelayed unreasonably).
Appears in 1 contract
Matters Involving Third Parties. (a) If any third party shall notify commence an action or proceeding against any Indemnified Party with respect to any matter (a “Third Party Claim”) which that may give rise to a claim for indemnification against the any Indemnifying Parties Party under this Article 8Sections 8.1 or 8.2 hereof (a “Third Party Claim”), then the Indemnified Party shall promptly notify the Indemnifying Parties (the Representative, if the Securityholders are the Indemnifying Parties) Party thereof in writing; writing as soon as practicable, but in no event more than ten (10) days after the Indemnified Party shall have been served, provided, however, that no delay on the part right of the Indemnified Party to indemnification shall be reduced in notifying any Indemnifying Parties shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely event of its failure to give timely notice only to the extent) extent the Indemnifying Party is prejudiced thereby.
(b) The Indemnifying Parties will Party shall have the right, at their sole cost and expense, right to defend the Indemnified Party against the Third Party Claim with counsel and other representatives of the Indemnifying Parties’ choice, reasonably satisfactory to the Indemnified Party, its choice so long as (i) the Indemnifying Parties Party shall notify the Indemnified Party, Party in writing (within ten the fifteen (1015) days day period after the Indemnified Party has given its receipt of notice of the Third Party Claim to the Indemnifying Parties that the Indemnifying Parties are assuming the defense of such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in accordance with the terms and limitations of this Article 8 (but excluding, for this purpose Section 8.2(cClaim) and (ii) the Indemnifying Parties conduct Party diligently conducts the defense of the Third Party Claim in an active and diligent mannerClaim. In the event that the Indemnifying Parties fail to assume the defense or settlement of any Third Party Claim within ten (10) days after notice thereof is given by the Indemnified Party, or fail to conduct the defense in an active and diligent mannerOtherwise, the Indemnified Party shall have may defend against the right to undertake the defense, appeal or settlement of such Third Party Claim at the expense and preserving its rights to indemnification hereunder including without limitation for the account cost of the Indemnifying Partysuch defense.
(c) So long as the conditions set forth in Section 8.5(b) are and remain satisfied, then (i) the Indemnifying Parties may conduct Party is conducting the defense of the Third Party Claim in accordance with Section 8.5(b)8.4(b) above, (i) the Indemnified Party may retain separate co-counsel, at its sole cost and expense, and participate in the defense of the Third Party Claim, (ii) the Indemnified Parties may retain separate co counsel at their sole cost and expense and Party shall not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnifying Party, (iii) the Indemnified Party shall fully cooperate with the Indemnifying Parties will notParty in the investigation and defense of any such Third Party Claim, including without limitation, providing required information and documents and access to all employees of the Indemnified Party with knowledge of issues relevant to the claim or litigation (any such activities required to discharge this obligation to cooperate shall be incurred at the sole expense of the Indemnified Party) and (iv) the Indemnifying Party shall not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnified Parties (Party, which consent shall not be unreasonably withheld or delayed), consent to any admission or the entry unless such settlement includes as a term thereof a general release of any judgment with respect to the matter, or enter into any settlement which (A) imposes an injunction or other equitable relief upon the Indemnified Party, (B) does not include an unconditional provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all liability with respect thereto or (C) in the reasonable opinion such Third Party Claim. Notwithstanding any other provision of the Indemnified Party, could have a material adverse effect on its reputation, business, operations, assets, or financial condition.
(d) Notwithstanding the foregoingthis Section 8.4, if (i) an Indemnified Party determines in good faith that there is withholds its consent to a reasonable probability that an settlement or elects to continue the defense of any claim, where but for such action may materially and adversely affect it or its Affiliates other than as a result of monetary damages, (ii) the Indemnifying Party shall not could have (A) assumed settled such claim solely for the defense payment of money by the Third Indemnifying Party Claim, (B) conducted as specified in the defense in an active and diligent manner, or (C) employed counsel reasonably satisfactory written request for consent to the Indemnified Party to have charge of such third party action, (iii) the Indemnified Party shall have reasonably concluded that there may be defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party, or (iv) the Indemnified Party’s counsel shall have advised the Indemnified Party in writing, with a copy settlement delivered to the Indemnifying Party, that there is a material conflict of interest that could violate applicable standards of professional conduct to have common counsel, then, in each case, such Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise or settle such action, but the Indemnifying Party shall have no liability with respect be required to indemnify the Indemnified Party only up to a compromise or maximum of the bona fide settlement with respect to offer for which the Indemnifying Party could have settled such Third Party Claim entered into without its consent (which shall not be unreasonably withheld, conditioned or delayed)claim.
Appears in 1 contract
Matters Involving Third Parties. (a) If any third party shall notify an notifies any Party (the “Indemnified Party Party”) with respect to any matter (a “Third Third-Party Claim”) which that may give rise to a claim for indemnification against any other Party (the “Indemnifying Parties Party”) under this Article 8VIII, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing within five (5) Business Days of such claim, the Indemnifying Parties (the Representativeamount of losses, if known, or a good faith estimate of the Securityholders are amount, and the Indemnifying Parties) thereof method of computation of such losses, in writingeach case in reasonable detail, and; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Parties Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is prejudiced therebythereby prejudiced. The notice shall be accompanied by copies of all documents and information relevant to the claim and in the Indemnified Party’s possession, under the Indemnified Party’s reasonable control or that can be obtained by the Indemnified Party by exercise of commercially reasonable efforts.
(b) The Any Indemnifying Parties Party will have the right, at their sole cost and expense, right to defend assume the Indemnified Party against defense of the Third Third-Party Claim with counsel of the Indemnifying Parties’ choicehis, her, or its choice reasonably satisfactory to the Indemnified Party, so long as Party at any time within fifteen (i) the Indemnifying Parties notify the Indemnified Party, within ten (1015) days after the Indemnified Party has given notice of the Third Third- Party Claim to the Indemnifying Parties Claim; provided, however, that the Indemnifying Parties are assuming the defense of such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in accordance with the terms and limitations of this Article 8 (but excluding, for this purpose Section 8.2(c) and (ii) the Indemnifying Parties must conduct the defense of the Third Third-Party Claim actively and diligently thereafter in an active and diligent manner. In the event that the Indemnifying Parties fail order to assume the defense or settlement of any Third Party Claim within ten (10) days after notice thereof is given by the Indemnified Partypreserve his, her, or fail to conduct the defense its rights in an active this regard; and diligent manner, provided further that the Indemnified Party shall have the right to undertake the defense, appeal or settlement of such Third Party Claim may retain separate co-counsel at the its sole cost and expense and for participate in the account defense of the Indemnifying PartyThird-Party Claim.
(c) So long The Indemnifying Party, if it shall have assumed the defense of any Third- Party Claim as the conditions set forth provided in Section 8.5(b) are and remain satisfiedthis Agreement, then shall (i) the Indemnifying Parties may conduct the defense of the Third such Third-Party Claim with reasonable diligence and keep the Indemnified Party reasonably informed of material developments in accordance with Section 8.5(b), the Third-Party Claims that materially affect the Indemnified Party and (ii) not consent to a settlement of, or the Indemnified Parties may retain separate co counsel at their sole cost and expense and (iii) the Indemnifying Parties will notentry of any judgment arising from, any such Third-Party Claim without the prior written consent of the Indemnified Party.
(d) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 8.5(b) above, however, (which consent shall not be unreasonably withheld or delayed)A) the Indemnified Party may defend against, and consent to any admission or the entry of any judgment with respect to the matter, on or enter into any settlement which with respect to, the Third-Party Claim in any manner he, she, or it may reasonably deem appropriate (A) imposes an injunction or other equitable relief upon the Indemnified Party, (B) does not include an unconditional provision whereby the plaintiff or claimant in the matter releases and the Indemnified Party from all liability with respect thereto or (C) in the reasonable opinion of the Indemnified Party, could have a material adverse effect on its reputation, business, operations, assetsneed not consult with, or financial condition.
obtain any consent from, any Indemnifying Party in connection therewith); provided, however, that at least ten (d10) Notwithstanding the foregoingBusiness Days prior to any settlement, if (i) an Indemnified Party determines in good faith that there written notice of its intention to settle is a reasonable probability that an action may materially and adversely affect it or its Affiliates other than as a result of monetary damages, (ii) given to the Indemnifying Party shall not have (A) assumed the defense of the Third and Indemnifying Party Claim, (B) conducted the defense in an active and diligent manner, or (C) employed counsel reasonably satisfactory gives its prior written consent to the Indemnified Party to have charge of such third party action, (iii) the Indemnified Party shall have reasonably concluded that there may be defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party, or (iv) the Indemnified Party’s counsel shall have advised the Indemnified Party in writing, with a copy delivered to the Indemnifying Party, that there is a material conflict of interest that could violate applicable standards of professional conduct to have common counsel, then, in each case, such Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise or settle such action, but the Indemnifying Party shall have no liability with respect to a compromise or settlement with respect to such Third Party Claim entered into without its consent (which consent shall not be unreasonably withheld, conditioned or delayed), and (B) the Indemnifying Parties will remain responsible for any Adverse Consequences the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article VIII. Notwithstanding the foregoing, if an Indemnifying Party has not previously elected to assume and control the defense of a Third-Party Claim and provided that the Indemnified Party will not be actually prejudiced thereby, the Indemnifying Party may elect to assume and control the contest, defense, litigation or settlement of such Third-Party Claim on ten (10) Business Days prior written notice to the Indemnified Party.
(e) Any Indemnified Party shall cooperate in all reasonable respects with the Indemnifying Party and its attorneys in the investigation, trial and defense of any Third-Party Claim and any appeal arising therefrom and shall furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection therewith. Such cooperation shall include access during normal business hours afforded to the Indemnifying Party and its agents and representatives to, and reasonable retention by the Indemnified Party of, records and information which have been identified by the Indemnifying Party as being reasonably relevant to such Third-Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The parties shall cooperate with each other in any notifications to insurers.
(f) Each Indemnified Party shall take all reasonable steps to mitigate any loss upon becoming aware of any event which would reasonably be expected to, or does, give rise thereto, including (i) incurring costs only to the minimum extent necessary to remedy the breach which gives rise to the loss and (ii) refraining from taking any action that might give rise to, or otherwise encouraging or soliciting, any Third-Party Claim.
(g) The Parties agree that the provisions in this Agreement relating to indemnification were specifically bargained for between sophisticated parties (after consultation with their advisors).
Appears in 1 contract
Sources: Stock Purchase Agreement
Matters Involving Third Parties. (ai) If any third party shall notify an Indemnified any Party (the "INDEMNIFIED PARTY") with respect to any matter (a “Third Party Claim”"THIRD PARTY CLAIM") which may give rise to a claim by such Indemnified Party for indemnification against any other Party (the Indemnifying Parties "INDEMNIFYING PARTY") under this Article 8Agreement, then the Indemnified Party shall promptly notify the each Indemnifying Parties (the Representative, if the Securityholders are the Indemnifying Parties) Party thereof in writingpromptly; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Parties Party shall relieve the Indemnifying Party from any liability or obligation hereunder unless (and then solely to the extentextent that) the Indemnifying Party is prejudiced disadvantaged or damaged thereby.
(bii) The Any Indemnifying Parties Party will have the right, at their sole cost and expense, right to defend the Indemnified Party against the a Third Party Claim with counsel of the Indemnifying Parties’ Party's choice, reasonably satisfactory to the Indemnified Party, so long as (iA) the Indemnifying Parties notify Party notifies the Indemnified Party, within ten thirty (1030) business days after the Indemnified Party has given notice of the Third Party Claim to the Indemnifying Parties Party that the Indemnifying Parties are Party is assuming the defense of such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in accordance with the terms and limitations of this Article 8 (but excludingSection 8.1, for this purpose Section 8.2(c) and (iiB) the Indemnifying Parties conduct Party conducts the defense of the Third Party Claim in an active actively and diligent manner. In the event that the Indemnifying Parties fail to assume the defense or settlement of any Third Party Claim within ten (10) days after notice thereof is given by the Indemnified Party, or fail to conduct the defense in an active and diligent manner, the Indemnified Party shall have the right to undertake the defense, appeal or settlement of such Third Party Claim at the expense and for the account of the Indemnifying Partydiligently.
(ciii) So long as the conditions set forth in Section 8.5(b8.1(f)(ii) are and remain satisfied, then (iA) the Indemnifying Parties Party may conduct the defense of the 58 63 Third-Party Claim, (B) the Indemnified Party may retain one separate local co-counsel in each relevant jurisdiction at its sole cost and expense, (C) the Indemnified Party will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim in accordance with Section 8.5(b), (ii) the Indemnified Parties may retain separate co counsel at their sole cost and expense and (iii) the Indemnifying Parties will not, without the prior written consent of the Indemnified Parties Indemnifying Party (which consent shall not to be unreasonably withheld or delayedwithheld), (D) the Indemnifying Party will not consent to any admission or the entry of any judgment with respect to the matter, or enter into any settlement which (Ax) requires a payment by the Indemnified Party other than from the Escrow Amount, (y) imposes an injunction or other equitable relief upon the Indemnified Party, (B) Party or does not include an unconditional a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all liability with respect thereto thereto, or (Cz) in the reasonable opinion case of a Third Party Claim initiated by any taxing authority with respect to Taxes, which would increase the liability for Taxes of the Indemnified Party, could have a material adverse effect on its reputation, business, operations, assets, or financial condition.
(d) Notwithstanding without the foregoing, if (i) an Indemnified Party determines in good faith that there is a reasonable probability that an action may materially and adversely affect it or its Affiliates other than as a result prior written consent of monetary damages, (ii) the Indemnifying Party shall not have (A) assumed the defense of the Third Party Claim, (B) conducted the defense in an active and diligent manner, or (C) employed counsel reasonably satisfactory to the Indemnified Party to have charge of such third party action, (iii) the Indemnified Party shall have reasonably concluded that there may be defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party, or (iv) the Indemnified Party’s counsel shall have advised the Indemnified Party in writing, with a copy delivered to the Indemnifying Party, that there is a material conflict of interest that could violate applicable standards of professional conduct to have common counsel, then, in each case, such Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise or settle such action, but the Indemnifying Party shall have no liability with respect to a compromise or settlement with respect to such Third Party Claim entered into without its which consent (which shall not be unreasonably withheld, conditioned and (E) the Indemnified Party shall, at the Indemnifying Party's reasonable request and at the Indemnifying Party's expense, cooperate in the defense of the matter. In the event that the conditions in Section 8.1(f)(ii) are or delayed)become unsatisfied in the case of any Third Party Claim, then the Indemnified Party may assume control of the defense of such claim, subject to the requirement that it not enter into any settlement or consent to the entry of any judgment with respect to the matter without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld.
Appears in 1 contract
Sources: Stock Purchase Agreement (Applied Materials Inc /De)
Matters Involving Third Parties. (a) If any third party shall notify Promptly after receipt by an Indemnified Party under Section 6.2(a) or Section 6.2(b) of notice of the commencement of any claim by a third party against it, including in connection with respect to any the matter (a “Third set forth in Section 6.2(a)(v), such Indemnified Party Claim”) which may give rise to will, if a claim for indemnification is to be made against an Indemnifying Party, give prompt notice to the Indemnifying Parties under this Article 8Party of the commencement of such claim, then but the Indemnified Party shall promptly failure to notify the Indemnifying Parties (the Representative, if the Securityholders are the Indemnifying Parties) thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Parties shall will not relieve the Indemnifying Party from of any obligation hereunder Liability that it may have to any Indemnified Party, except to the extent that the Indemnifying Party demonstrates that the defense of such Proceeding is prejudiced by the Indemnified Party’s failure to give such notice.
(b) If any claim referred to in Section 6.4(a) is brought against an Indemnified Party and it gives notice to the Indemnifying Party of the commencement of such third-party claim, the Indemnifying Party will, unless the claim involves Taxes, be entitled to participate in such third-party claim and, to the extent that it desires (unless (and then solely to the extenti) the Indemnifying Party is prejudiced thereby.
(b) The Indemnifying Parties will have also a party to such third-party claim and the right, at their sole cost and expense, to defend the Indemnified Party against the Third Party Claim with counsel of the Indemnifying Parties’ choice, reasonably satisfactory to the Indemnified Party, so long as (i) the Indemnifying Parties notify the Indemnified Party, within ten (10) days after the Indemnified Party has given notice of the Third Party Claim to the Indemnifying Parties that the Indemnifying Parties are assuming the defense of such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in accordance with the terms and limitations of this Article 8 (but excluding, for this purpose Section 8.2(c) and (ii) the Indemnifying Parties conduct the defense of the Third Party Claim in an active and diligent manner. In the event that the Indemnifying Parties fail to assume the defense or settlement of any Third Party Claim within ten (10) days after notice thereof is given by the Indemnified Party, or fail to conduct the defense in an active and diligent manner, the Indemnified Party shall have the right to undertake the defense, appeal or settlement of such Third Party Claim at the expense and for the account of the Indemnifying Party.
(c) So long as the conditions set forth in Section 8.5(b) are and remain satisfied, then (i) the Indemnifying Parties may conduct the defense of the Third Party Claim in accordance with Section 8.5(b), (ii) the Indemnified Parties may retain separate co counsel at their sole cost and expense and (iii) the Indemnifying Parties will not, without the prior written consent of the Indemnified Parties (which consent shall not be unreasonably withheld or delayed), consent to any admission or the entry of any judgment with respect to the matter, or enter into any settlement which (A) imposes an injunction or other equitable relief upon the Indemnified Party, (B) does not include an unconditional provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all liability with respect thereto or (C) in the reasonable opinion of the Indemnified Party, could have a material adverse effect on its reputation, business, operations, assets, or financial condition.
(d) Notwithstanding the foregoing, if (i) an Indemnified Party determines in good faith that joint representation would be inappropriate, or (ii) the Indemnifying Party fails 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 and, after notice from the Indemnifying Party to the Indemnified Party of its election to assume the defense of such third-party claim, the Indemnifying Party will not, as long as it diligently conducts such defense, be liable to the Indemnified Party under this Article VI 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. If the Indemnifying Party assumes the defense of a third-party claim, no compromise or settlement of such claims may be effected by the Indemnifying Party without the Indemnified Party’s consent, such consent not to be unreasonably withheld or delayed. If notice is given to an Indemnifying Party of the commencement of any third-party claim and the Indemnifying Party does not, within twenty (20) days (or, if earlier, by the tenth day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the Person asserting the claim) after the Indemnified Party’s notice is given, give notice to the Indemnified Party of its election to assume the defense of such third-party claim, the Indemnifying Party will be bound by any determination made in such third-party claim. For the purposes of any claim referred to in Section 6.2(a)(v), to the extent that the compromise or settlement of such claim will result in amount payable that exceeds the insurance coverage in respect of such claim, no compromise or settlement of such claim may be effected by the Indemnified Party without the Indemnifying Party’s consent, which consent shall not be unreasonably withheld, conditioned or delayed.
(c) Notwithstanding the foregoing, if an Indemnified Party demonstrates that there is a reasonable probability that an action a third-party claim may materially and adversely affect it or its Affiliates other than as a result of monetary damagesdamages for which it would be entitled to indemnification under this Agreement, (ii) the Indemnifying Party shall not have (A) assumed the defense of the Third Party Claim, (B) conducted the defense in an active and diligent manner, or (C) employed counsel reasonably satisfactory to the Indemnified Party to have charge of such third party action, (iii) the Indemnified Party shall have reasonably concluded that there may be defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party, or (iv) the Indemnified Party’s counsel shall have advised the Indemnified Party in writing, with a copy delivered to the Indemnifying Party, that there is a material conflict of interest that could violate applicable standards of professional conduct to have common counsel, then, in each case, such Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise or settle such actionthird-party claim, but the Indemnifying Party shall have no liability with respect to will not be bound by any determination of a third-party claim so defended or any compromise or settlement with respect to such Third Party Claim entered into effected without its consent (which shall may not be unreasonably withheld, conditioned withheld or delayed).
Appears in 1 contract
Matters Involving Third Parties. (ai) If any third party shall notify an any Party (the "Indemnified Party ----------- Party") with respect to any matter (a “"Third Party Claim”") which may give ----- ----------------- rise to a claim for indemnification against any other Party (the "Indemnifying Parties Party") under (S) 8 or this Article 8(S) 9, then the Indemnified Party ------------------- shall promptly notify the each Indemnifying Parties (the Representative, if the Securityholders are the Indemnifying Parties) Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Parties Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party thereby is prejudiced therebyprejudiced.
(bii) The Except with respect to the Naue Claim and the ▇▇▇▇▇ Claim, any Indemnifying Parties Party will have the right, at their sole cost and expense, right to defend assume the Indemnified Party against defense of the Third Party Claim with counsel of the Indemnifying Parties’ choice, its choice reasonably satisfactory to the Indemnified Party, so long as (i) the Indemnifying Parties notify the Indemnified Party, Party at any time within ten (10) 15 days after the Indemnified Party has given notice of the Third Party Claim to the Indemnifying Parties Claim; provided, however, that the Indemnifying Parties are assuming the defense of such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in accordance with the terms and limitations of this Article 8 (but excluding, for this purpose Section 8.2(c) and (ii) the Indemnifying Parties must conduct the defense of the Third Party Claim actively and diligently thereafter in an active order to preserve its rights in this regard; and diligent manner. In the event provided further that the Indemnifying Parties fail to assume the defense or settlement of any Third Party Claim within ten (10) days after notice thereof is given by the Indemnified Party, or fail to conduct the defense in an active and diligent manner, the Indemnified Party shall have may retain separate ---------------- co-counsel at its sole cost and expense and participate in the right to undertake defense of the defense, appeal or settlement of such Third Party Claim at the expense and for the account of the Indemnifying PartyClaim.
(ciii) So long as the conditions set forth Indemnifying Party has assumed and is conducting the defense of the Third Party Claim in Section 8.5(baccordance with (S) are and remain satisfied9(d)(ii) above, then (iA) the Indemnifying Parties may Party will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnified Party (not to be withheld or delayed unreasonably) unless the judgment or proposed settlement involves only the payment of money damages by the Indemnifying Party and does not impose an injunction or other equitable relief upon the Indemnified Party and (B) the Indemnified Party will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnifying Party (not to be withheld or delayed unreasonably).
(iv) In the event the Indemnifying Party does not assume and conduct the defense of the Third Party Claim in accordance with Section 8.5(b)(S) 9(d)(ii) above, (ii) the Indemnified Parties Party may retain separate co counsel at their sole cost defend against, and expense and (iii) the Indemnifying Parties will not, without the prior written consent of the Indemnified Parties (which consent shall not be unreasonably withheld or delayed), consent to any admission or the entry of any judgment with respect to the matter, or enter into any settlement which (A) imposes an injunction or other equitable relief upon the Indemnified Party, (B) does not include an unconditional provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all liability with respect thereto or (C) to, the Third Party Claim in any manner it reasonably may deem appropriate, subject to the reasonable opinion consent of the Indemnified Party, could have a material adverse effect on its reputation, business, operations, assets, or financial condition.
(d) Notwithstanding the foregoing, if (i) an Indemnified Party determines in good faith that there is a reasonable probability that an action may materially and adversely affect it or its Affiliates other than as a result of monetary damages, (ii) the Indemnifying Party in connection therewith (not to be withheld or delayed unreasonably). Nothing in this (S) 9(d)(iv) shall not have (A) assumed the defense of the Third Party Claim, (B) conducted the defense in an active and diligent manner, or (C) employed counsel reasonably satisfactory to the Indemnified Party to have charge of such third party action, (iii) the Indemnified Party shall have reasonably concluded that there may be defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party, or (iv) the Indemnified Party’s counsel shall have advised the Indemnified Party in writing, with a copy delivered to the Indemnifying Party, that there is a material conflict of interest that could violate applicable standards of professional conduct to have common counsel, then, in each case, such Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise or settle such action, but relieve the Indemnifying Party shall have no liability with respect to a compromise or settlement with respect to such Third Party Claim entered into without its consent from any obligation under this (which shall not be unreasonably withheld, conditioned or delayed)S) 9.
Appears in 1 contract
Sources: Stock Purchase Agreement (Gundle SLT Environmental Inc)
Matters Involving Third Parties. (a) If any third party shall notify an a party entitled to be indemnified pursuant to Section 9.1 or 9.2 (the "Indemnified Party Party") with respect to any matter (a “Third which the Indemnified Party Claim”) which has determined may give rise to a claim for indemnification against the PACE Group or the Blockbuster Group, as the case may be (a "Third Party Claim") (the "Indemnifying Parties under this Article 8Party"), then the Indemnified Party shall promptly notify the each Indemnifying Parties (the Representative, if the Securityholders are the Indemnifying Parties) Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Parties Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party thereby is prejudiced therebyprejudiced. Subject to the Indemnifying Party's right to defend in good faith Third Party Claims as hereinafter provided, the Indemnifying Party shall satisfy its obligations under this Section 9 within 30 days after the receipt of written notice thereof from the Indemnified Party unless the Indemnifying Party notifies the Indemnified Party that it disputes any such obligations.
(b) The If the Indemnified Party shall notify the Indemnifying Parties Party of any claim or demand pursuant to Section 9.3(a), and if such claim or demand relates to a Third Party Claim or demand against the Indemnified Party which the Indemnifying Party acknowledges is a claim or demand for which it must indemnify or hold harmless the Indemnified Party under Section 9.1 or 9.2, the Indemnifying Party will have the right, at their sole cost and expense, right to defend the Indemnified Party against the Third Party Claim with counsel of the Indemnifying Parties’ choice, its choice reasonably satisfactory to the Indemnified Party, Party so long as (iA) the Indemnifying Parties notify Party notifies the Indemnified Party, Party in writing within ten (10) 15 days after the Indemnified Party has given notice of the Third Party Claim to the Indemnifying Parties that the Indemnifying Parties are assuming the defense of such Third Party Claim and will indemnify the Indemnified Party from and against such the entirety of any Damages the Indemnified Party may suffer resulting from, arising out of, relating to or caused by the Third Party Claim, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the Third Party Claim and fulfill its indemnification obligations hereunder, (C) the Third Party Claim involves only money damage and does not seek an injunction or other equitable relief, (D) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in accordance with the terms and limitations good faith judgment of this Article 8 (but excludingthe Indemnifying Party, for this purpose Section 8.2(c) likely to establish a precedential custom or practice materially adverse to the continuing business interests of the Indemnified Party, and (iiE) the Indemnifying Parties conduct Party conducts in good faith the defense of the Third Party Claim in an active actively and diligent mannerdiligently. In the event that The Indemnified Party shall make available to the Indemnifying Parties fail to assume the defense Party or settlement of any Third Party Claim within ten (10) days after notice thereof is given by its agents all records and other material in the Indemnified Party, 's possession reasonably required by it for use in contesting the Third Party Claim. Whether or fail not the Indemnifying Party elects to conduct defend the defense in an active and diligent mannerThird Party Claim, the Indemnified Party shall have the right no obligation to undertake the defense, appeal or settlement of such Third Party Claim at the expense and for the account of the Indemnifying Partydo so.
(c) So long as the conditions set forth in Section 8.5(b) are and remain satisfied, then (i) the Indemnifying Parties may conduct Party is conducting the defense of the Third Party Claim in accordance with Section 8.5(b)9.3(b) above, (iiA) the Indemnified Parties Party may retain separate co co-counsel at their its sole cost and expense and (iii) the Indemnifying Parties will not, without the prior written consent of the Indemnified Parties (which consent shall not be unreasonably withheld or delayed), consent to any admission or the entry of any judgment with respect to the matter, or enter into any settlement which (A) imposes an injunction or other equitable relief upon the Indemnified Party, (B) does not include an unconditional provision whereby the plaintiff or claimant participate in the matter releases the Indemnified Party from all liability with respect thereto or (C) in the reasonable opinion of the Indemnified Party, could have a material adverse effect on its reputation, business, operations, assets, or financial condition.
(d) Notwithstanding the foregoing, if (i) an Indemnified Party determines in good faith that there is a reasonable probability that an action may materially and adversely affect it or its Affiliates other than as a result of monetary damages, (ii) the Indemnifying Party shall not have (A) assumed the defense of the Third Party Claim, (B) conducted the defense in an active Indemnified Party will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnifying Party (not to be withheld unreasonably), and diligent manner, or (C) employed counsel reasonably satisfactory the Indemnifying Party will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnified Party (not to have charge be withheld unreasonably).
(d) In the event any of such third party actionthe conditions in Section 9.3(b) above is or becomes unsatisfied, however, (iiiA) the Indemnified Party shall have reasonably concluded that there may be defenses available to such Indemnified Party that are different from or additional to those available defend against, and consent to the Indemnifying Partyentry of any judgment or enter into any settlement with respect to, or the Third Party Claim in any manner it reasonably may deem appropriate (iv) the Indemnified Party’s counsel shall have advised and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in writingconnection therewith), with a copy delivered to the Indemnifying Party, that there is a material conflict of interest that could violate applicable standards of professional conduct to have common counsel, then, in each case, such Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise or settle such action, but and (B) the Indemnifying Party shall have no liability with respect to a compromise will remain responsible for any damages the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or settlement with respect to such caused by the Third Party Claim entered into without its consent (which shall not be unreasonably withheld, conditioned or delayed)to the fullest extent provided in this Section 9.
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Matters Involving Third Parties. (a) If any third party shall notify commence an Action against any Indemnified Party with respect to any matter (a “Third Party Claim”"THIRD PARTY CLAIM") which may give rise to a claim for indemnification against the any Indemnifying Parties Party under this Article 8XI, then the Indemnified Party shall promptly notify the Indemnifying Parties (the Representative, if the Securityholders are the Indemnifying Parties) Party thereof in writing; writing as soon as practicable, but in no event more than ten days after the Indemnified Party shall have been served, provided, however, that no delay on the part right of the Indemnified Party to indemnification shall be reduced in notifying any Indemnifying Parties shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely event of its failure to give timely notice only to the extent) extent the Indemnifying Party is prejudiced thereby.
(b) The Indemnifying Parties will Party shall have the right, at their sole cost and expense, right to defend the Indemnified Party against the Third Party Claim with counsel and other Representatives of the Indemnifying Parties’ choice, reasonably satisfactory to the Indemnified Party, its choice so long as (i) the Indemnifying Parties Party shall notify the Indemnified Party, Party in writing (within ten (10) days the five day period after the Indemnified Party has given its receipt of notice of the Third Party Claim to the Indemnifying Parties Claim) that the Indemnifying Parties are assuming the defense of such Third Party Claim and it will indemnify the Indemnified Party from and against such any Damages the Indemnified Party may suffer arising out of the Third Party Claim in accordance with the terms and limitations of this Article 8 (but excluding, for this purpose Section 8.2(c) and (ii) the Indemnifying Parties conduct Party diligently conducts the defense of the Third Party Claim in an active and diligent mannerClaim. In the event that the Indemnifying Parties fail to assume the defense or settlement of any Third Party Claim within ten (10) days after notice thereof is given by the Indemnified Party, or fail to conduct the defense in an active and diligent mannerOtherwise, the Indemnified Party shall have may defend against the right to undertake the defense, appeal or settlement of such Third Party Claim at the expense and preserving its rights to indemnification hereunder including without limitation for the account cost of the Indemnifying Partysuch defense.
(c) So long as the conditions set forth in Section 8.5(b) are and remain satisfied, then (i) the Indemnifying Parties may conduct Party is conducting the defense of the Third Party Claim in accordance with Section 8.5(b)11.5(b) above, (i) the Indemnified Party may retain separate co-counsel, at its sole cost and expense, and participate in the defense of the Third Party Claim, (ii) the Indemnified Parties may retain separate co counsel at their sole cost and expense and Party shall not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnifying Party, (iii) the Indemnified Party shall cooperate within reason with the Indemnifying Parties will notParty's defense of such Third Party Claim including, without limitation, providing required information and documents and access to all employees of the Indemnified Party with knowledge of issues relevant to the claim or litigation (any such activities required to discharge this obligation to cooperate shall be incurred at the sole expense of the Indemnified Party) and (iv) the Indemnifying Party shall not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnified Parties (Party, which consent shall not be unreasonably withheld or delayed). Notwithstanding any other provision of this Section 11.5, if an Indemnified Party withholds its consent to any admission a settlement or elects to continue the entry defense of any judgment with respect claim, where but for such action the Indemnifying Party could have settled such claim solely for the payment of money by the Indemnifying Party as specified in the written request for consent to the matter, or enter into any settlement which (A) imposes an injunction or other equitable relief upon delivered to the Indemnified Party, (B) does not include an unconditional provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all liability with respect thereto or (C) in the reasonable opinion of the Indemnified Party, could have a material adverse effect on its reputation, business, operations, assets, or financial condition.
(d) Notwithstanding the foregoing, if (i) an Indemnified Party determines in good faith that there is a reasonable probability that an action may materially and adversely affect it or its Affiliates other than as a result of monetary damages, (ii) the Indemnifying Party shall not have (A) assumed the defense of the Third Party Claim, (B) conducted the defense in an active and diligent manner, or (C) employed counsel reasonably satisfactory be required to indemnify the Indemnified Party only up to have charge a maximum of such third party action, (iii) the Indemnified Party shall have reasonably concluded that there may be defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party, or (iv) the Indemnified Party’s counsel shall have advised the Indemnified Party in writing, with a copy delivered to the Indemnifying Party, that there is a material conflict of interest that could violate applicable standards of professional conduct to have common counsel, then, in each case, such Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise or settle such action, but bona fide settlement offer for which the Indemnifying Party shall could have no liability with respect to a compromise or settlement with respect to settled such Third Party Claim entered into without its consent (which shall not be unreasonably withheld, conditioned or delayed)claim.
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