Method of Asserting Claims. (a) If a Party entitled to indemnification pursuant to the terms hereof (the “Indemnified Party”) intends to seek indemnification under this Article 4 from the other Party (the “Indemnifying Party”), the Indemnified Party shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of any claim or action by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or delay by an Indemnified Party to so notify the Indemnifying Party (as set forth above) shall not relieve the Indemnifying Party of its indemnification obligations hereunder to the Indemnified Party, however the liability which the Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced to the extent that any such delay in or failure to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for herein. (b) The Indemnifying Party, at its sole cost and expense, shall have the right to assume the defence of any claim, action, suit, proceeding or investigation brought against the Indemnified Party with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Party. (c) Notwithstanding the foregoing: (i) if the defendants in any such action, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or (ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which shall be at the Indemnifying Party’s expense, to represent the Indemnified Party and to otherwise participate in the defence of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Party.
Appears in 2 contracts
Sources: Fund Delegation Agreement, Fund Delegation Agreement
Method of Asserting Claims. (a) If a Party entitled to indemnification pursuant to the terms hereof (the “Indemnified Party”) intends to seek All claims for indemnification under this Article 4 from VII shall be asserted and resolved as follows:
(a) In the other Party (the “Indemnifying Party”), the Indemnified Party shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of event that any claim or action demand for which an indemnifying party would be liable to a Company Indemnified Party or a Members Indemnified Party (each, an "Indemnified Party") hereunder is asserted against or sought to be collected by a third party, the Indemnified Party shall:
(i) promptly following receipt of written notice notify the indemnifying party of such third party claim or action. The demand, specifying the nature of such claim or demand and the amount or the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim or demand) (the "Claim Notice") and specifically indicating that it is a claim for indemnification and citing the specific sections in this Agreement pursuant to which indemnification is sought; provided, however, that the failure of or delay by an Indemnified Party to so notify the Indemnifying Party (give notice as set forth above) provided herein shall not relieve the Indemnifying Party an indemnifying party of its indemnification obligations hereunder under this Article VII, except to the extent the indemnifying party is actually prejudiced thereby;
(ii) an indemnifying party shall have 15 calendar days from their receipt of the Claim Notice (the "Notice Period") to notify the Indemnified Party, however Party (x) whether or not the indemnifying party disputes its liability which the Indemnifying Party has to the Indemnified Party pursuant hereunder with respect to the terms of this Article 4 such claim or demand and (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect ofy) shall be reduced to the extent that any such delay in whether or failure to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for herein.
(b) The Indemnifying Partynot it desires, at its sole cost and expense, to defend the Indemnified Party against such claim or demand; provided, however, that the Indemnified Party is hereby authorized prior to and during the Notice Period to file any motion, answer or other pleading which it reasonably shall deem necessary or appropriate to protect its interests;
(iii) in the event that the indemnifying party notifies the Indemnified Party within the Notice Period that the indemnifying party does not dispute such liability or desires to defend against such claim or demand, then except as hereinafter provided, the indemnifying party shall have the right to assume the defence defend by appropriate proceedings, which proceedings shall be promptly settled or prosecuted to a final conclusion in such a manner as to avoid any risk of any claim, action, suit, proceeding or investigation brought against the Indemnified Party with counsel designated by becoming subject to liability for any other matter, provided that the Indemnifying Party indemnifying party shall not settle any such claim without the prior written consent of the Indemnified Party, unless any such settlement shall involve only the payment of money and reasonably satisfactory provide for the delivery of a full release of any liability to the Indemnified Party; provided that the Indemnifying Party will not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such action, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences make available to the Indemnified Party indemnifying party, at the indemnifying party's expense, any documents and materials in his, her or its possession or control that are additional may be necessary or useful to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; ordefense;
(iiiv) if the Indemnified Party shall have reasonably concluded desires to participate in, but not control, any such defense or settlement it may do so at its sole cost and expense; provided, however, that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend indemnifying party shall pay such claim, action, suit, proceeding or investigation, expense if representation of the Indemnified Party has provided written notice by the counsel retained by the indemnifying party would be inappropriate due to actual or potential conflicts of same to interest between the Indemnifying Indemnified Party and any other party represented by such counsel in such proceeding;
(v) if any such claim involves a claim for taxes, or, if, in the reasonable opinion of the Indemnified Party, and any such claim or demand involves an issue or matter which could have a Material Adverse Effect on the Indemnifying Party has not rectified the situation within a reasonable time; then Indemnified Party, the Indemnified Party shall have the right to retain separate counselcontrol the defense or settlement of any such claim or demand, the and its reasonable costs of which and expenses thereof shall be at included as part of the Indemnifying Party’s expense, to represent indemnification obligations of the Indemnified Party hereunder and, with respect to subsections (iv) and (v) of this Section 7.4, the indemnifying party shall make available to otherwise participate the Indemnified Party any documents and materials in his or her possession or control that may be necessary or useful to such defense;
(vi) if the defence indemnifying party disputes the indemnifying party's liability with respect to such claim or demand or elects not to defend against such claim or demand, whether by not giving timely notice as provided above or otherwise, then the amount of any such claim or demand, or, if the same be contested by the indemnifying party or by the Indemnified Party (but the Indemnified Party shall not have any obligation to contest any such claim or demand), then that portion thereof as to which such defense is unsuccessful, shall be conclusively deemed to be a liability of the indemnifying party hereunder (subject, if the indemnifying party has timely disputed liability, to a determination that the disputed liability is covered by these indemnification provisions); and
(vii) In the event the Indemnified Party should have a claim against the indemnifying party hereunder which does not involve a claim or demand being asserted against or sought to be collected from it by a third party, the Indemnified Party shall promptly send a Claim Notice with respect to such claim to the indemnifying party. If the indemnifying party does not notify the Indemnified Party within the Notice Period that they dispute such claim, action, suit, proceeding or investigation on behalf the amount of such Indemnified Party. For further certainty, only one legal firm may claim shall be engaged at the expense conclusively deemed a liability of the Indemnifying Partyindemnifying party hereunder.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Usurf America Inc), Securities Purchase Agreement (Usurf America Inc)
Method of Asserting Claims. In the event that any written claim or demand for which Seller or Buyer, as the case may be (a) If a Party entitled to indemnification pursuant to the terms hereof (the “Indemnified Party”) intends to seek indemnification under this Article 4 from the other Party (the an “Indemnifying Party”), the may be liable to any Indemnified Party shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt hereunder is asserted against or determination by the sought to be collected from any Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of any claim or action by a third party, promptly such Indemnified Party shall promptly, but in no event later than ten (10) days following such Indemnified Party’s receipt of written notice of such third party claim or action. The failure of or delay by an Indemnified Party to so demand, notify the Indemnifying Party (as set forth above) shall not relieve in writing the Indemnifying Party of its indemnification obligations hereunder such claim or demand and the amount or the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim or demand) (the “Claim Notice”). The Indemnifying Party shall (i) have no liability with respect to any expenses incurred by the Indemnified Party, however Party prior to the liability which time the Claim Notice is delivered to the Indemnifying Party has and such expenses shall be deemed not to be Losses of the Indemnified Party pursuant to the terms and (ii) be relieved of this Article 4 (and for which the Indemnifying Party will be obligated its obligations to indemnify the Indemnified Party in with respect of) to such claim or demand if the Indemnified Party fails to timely deliver the Claim Notice and the Indemnifying Party is materially prejudiced thereby; provided, however, that the preceding portion of this sentence shall be reduced not apply to the extent that any such delay in or failure to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for herein.
(b) knowledge of such Claim prior to the Indemnified Party’s delivery of the Claim Notice. The Indemnifying Party shall have ten (10) days after the personal delivery or mailing of the Claim Notice, whichever is later (the “Notice Period”), to notify the Indemnified Party whether or not it desires to defend the Indemnified Party against such claim or demand and shall during the Notice Period and thereafter be provided by the Indemnified Party with such information relating to the claim or demand as the Indemnifying Party shall request. All costs and expenses incurred by the Indemnifying Party in defending such claim or demand shall be borne by the Indemnifying Party. Except as hereinafter provided, in the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against such claim or demand, the Indemnifying Party shall have the sole power to direct and control such defense. If the Indemnifying Party so elects to assume the defense of such claim, the Indemnifying Party shall not be liable to the Indemnified Party for any legal expenses subsequently incurred by the Indemnified Party. If any Indemnified Party desires to participate in, but not control, any such defense it may do so at its sole cost and expense, shall have the right to assume the defence of any claim, action, suit, proceeding or investigation brought against the . The Indemnified Party shall not settle, compromise or discharge a claim or demand for which it is indemnified by an Indemnifying Party or admit to any liability with counsel designated by respect to such claim or demand without the prior written consent of the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the . The Indemnifying Party will shall not, without the Indemnified Party’s prior written consent of the Indemnified Party (such which consent shall not to be unreasonably withheld), settle, compromisecompromise or offer to settle or compromise any such claim or demand on a basis which would result in the imposition of a consent order, consent to injunction or decree which would restrict the entry future activity or conduct of the Indemnified Party. To the extent the Indemnifying Party shall direct, control or participate in the defense or settlement of any judgment in third party claim or otherwise seek to terminate any actiondemand, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to provide the Indemnifying Party and its counsel reasonable access to all relevant business records and other documents relevant to such defence or settlementdocuments, and shall permit them use its reasonable best efforts to consult with assist, and to cause the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants Party to assist, in any defense of such action, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to claim. If the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if elects not to defend the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right and the obligation to retain separate counselvigorously defend the claim or demand by appropriate proceedings and shall have the sole power to direct and control such defense. In any event, the reasonable costs of which Indemnifying Party shall be at have the Indemnifying Party’s expense, right to represent the Indemnified Party and to otherwise participate in the defence defense or settlement of such claim, action, suit, proceeding any third party claim or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm demand for which the Indemnifying Party may be engaged liable hereunder at the expense of the Indemnifying Partyits own expense.
Appears in 2 contracts
Sources: Agreement of Purchase and Sale, Purchase and Sale Agreement (LNR Property Corp)
Method of Asserting Claims. The party making a claim under this Article 7 is referred to as the "Indemnified Party" and the party against whom such claims are asserted under this Article 7 is referred to as the "Indemnifying Party". All claims by any Indemnified Party under this Article 7 shall be asserted and resolved as follows:
(a) If a Party entitled to indemnification pursuant to In the terms hereof (the “Indemnified Party”) intends to seek indemnification under this Article 4 from the other Party (the “Indemnifying Party”), the Indemnified Party shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of event that any claim or action demand for which an Indemnifying Party would be liable to an Indemnified Party hereunder is asserted against or sought to be collected from such Indemnified Party by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or delay by an said Indemnified Party to so shall within fifteen (15) days notify the Indemnifying Party (as set forth above) shall not relieve in writing the Indemnifying Party of its indemnification obligations hereunder such claim or demand, specifying the nature of the specific basis for such claim or demand, and the amount or the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim and demand; any such notice, being the "Claim Notice"); provided, however, that any failure to give such Claim Notice will not be deemed a waiver of any rights of the Indemnified Party, however Party except to the liability which extent the rights of the Indemnifying Party has are actually prejudiced or harmed. The Indemnifying Party may elect to assume the defense of any such claim or demand by delivering written notice to the Indemnified Party pursuant of such election. Any Indemnified Party is hereby authorized prior to the terms of this Article 4 (and for date on which it receives written notice from the Indemnifying Party will be obligated assuming such defense, to indemnify the Indemnified Party in respect of) retain counsel, whose reasonable fees and expenses shall be reduced to at the extent that any such delay in or failure to give notice as herein required prejudices the defence expense of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for herein.
(b) The Indemnifying Party, at its sole cost and expense, shall have the right to assume the defence of any claim, action, suit, proceeding or investigation brought against the Indemnified Party with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such action, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, to file any motion, answer or other pleading and take such other action which it reasonably shall deem necessary to protect its interests or those of the Indemnifying Party until the date on which the Indemnified Party is advised by counsel that there are legal defences available to receives such notice from the Indemnified Party that are additional to those available to Indemnifying Party. After the Indemnifying Party and that in shall assume such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not takendefense, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate its own counsel, but the reasonable costs fees and expenses of which such counsel shall be at the expense of such Indemnified Party unless the named parties of any such proceeding (including any impleaded parties) include both the Indemnifying Party’s expense, to represent Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to otherwise participate actual or potential differing interests between them. The Indemnifying Party shall not, in connection with any proceedings or related proceedings in the defence same jurisdiction, be liable for the reasonable fees and expenses of more than one such claimfirm for the Indemnified Party (except to the extent the Indemnified Party retained counsel to protect its (or the Indemnifying Party's) rights prior to the selection of counsel by the Indemnifying Party). The Indemnified Party agrees to cooperate reasonably with the Indemnifying Party and its counsel in contesting any claim or demand, action, suit, proceeding which the Indemnifying Party defends. No claim or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm demand may be engaged at settled by an Indemnifying Party or, where permitted pursuant to this Agreement, by an Indemnified Party without the expense consent of the Indemnified Party in the first case or the consent of the Indemnifying Party in the second case, which consent shall not be unreasonably withheld, unless such settlement shall be accompanied by a complete release of the Indemnified Party in the first case or the Indemnifying Party in the second case.
(b) In the event any Indemnified Party shall have a claim against any Indemnifying Party hereunder which does not involve a claim or demand being asserted against or sought to be collected from it by a third party, the Indemnified Party shall send a Claim Notice with respect to such claim to the Indemnifying Party. If the Indemnifying Party does not dispute such claim within thirty (30) days of receipt of the Claim Notice the amount of such claim shall be paid to the Indemnified Party within forty-five (45) days of receipt of the Claim Notice.
(c) So long as any right to indemnification exists pursuant to this Article 7, the affected parties each agree to retain all books, records, accounts, instruments and documents reasonably related to the Claim Notice. In each instance, the Indemnified Party shall have the right to be kept informed by the Indemnifying Party and its legal counsel with respect to all significant matters relating to any legal proceedings. Any information or documents made available to any party hereunder, which information is designated as confidential by the party providing such information and which is not otherwise generally available to the public, or which information is not otherwise lawfully obtained from third parties or not already within the knowledge of the party to whom the information is provided (unless otherwise covered by the confidentiality provisions of any other agreement among the parties hereto, or any of them), and except as may be required by applicable law or requested by third party lenders to such party, shall not be disclosed to any third Person (except for the representatives of the party being provided with the information, in which event the party being provided with the information shall request its representatives not to disclose any such information which it otherwise required hereunder to be kept confidential).
Appears in 2 contracts
Sources: Share Exchange Agreement (Victory Capital Holdings Corp), Share Exchange Agreement (Victory Capital Holdings Corp)
Method of Asserting Claims. The party making a claim under this Article IX is referred to as the "Indemnified Party" and the party against whom such claims are asserted under this Article IX is referred to as the "Indemnifying Party". All claims by any Indemnified Party under this Article IX shall be asserted and resolved as follows:
(a) If a Party entitled to indemnification pursuant to In the terms hereof (the “Indemnified Party”) intends to seek indemnification under this Article 4 from the other Party (the “Indemnifying Party”), the Indemnified Party shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of event that any claim or action demand for which an Indemnifying Party would be liable to an Indemnified Party hereunder is asserted against or sought to be collected from such Indemnified Party by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or delay by an said Indemnified Party to so shall with reasonable promptness notify the Indemnifying Party (as set forth above) shall not relieve in writing the Indemnifying Party of its indemnification obligations hereunder such claim or demand, specifying the basis for such claim or demand, and the amount or the estimated amount thereof to the extent then determinable (which estimate shall not be conclusive of the final amount of such claim and demand; the "Claim Notice"); provided, however, that any failure to give such Claim Notice will not be deemed a waiver of any rights of the Indemnified Party, however Party except to the liability which extent the rights of the Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the are actually prejudiced by such failure. The Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced to the extent that any such delay in or failure to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for herein.
(b) The Indemnifying Party, at its sole cost and expense, shall have the right to assume control the defence defense of any claim, action, suit, proceeding such claim or investigation brought against the Indemnified Party with demand and shall retain counsel designated by the Indemnifying Party and (who shall be reasonably satisfactory acceptable to the Indemnified Party; provided that the Indemnifying Party will not, without the Indemnified Party’s prior written consent (such consent not ) to be unreasonably withheld), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such action, suit, proceeding or investigation include both represent the Indemnified Party and shall pay the reasonable fees and disbursements of such counsel with regard thereto; provided, however, that any Indemnified Party is hereby authorized prior to the date on which it receives written notice from the Indemnifying Party designating such counsel, to retain counsel, whose fees and expenses shall be at the expense of the Indemnifying Party, to file any motion, answer or other pleading and take such other action which it reasonably shall deem necessary to protect its interests or those of the Indemnifying Party until the date on which the Indemnified Party is advised by counsel that there are legal defences available to receives such notice from the Indemnified Party that are additional to those available to Indemnifying Party. After the Indemnifying Party and that in shall retain such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not takencounsel, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate its own counsel, but the reasonable costs fees and expenses of which such counsel shall be at the Indemnifying Party’s expense, to represent the Indemnified Party and to otherwise participate in the defence of such claim, action, suit, proceeding or investigation on behalf expense of such Indemnified Party. For further certaintyThe Indemnifying Party shall not, only in connection with any proceedings or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one legal such firm for the Indemnified Party (except to the extent the Indemnified Party retained counsel to protect its (or the Indemnifying Party's) rights prior to the selection of counsel by the Indemnifying Party). If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel in contesting any claim or demand which the Indemnifying Party defends. A claim or demand may not be engaged at settled by the expense Indemnifying Party without the prior written consent of the Indemnified Party (which consent will not be unreasonably withheld) unless, as part of such settlement, the Indemnified Party shall receive a full and unconditional release reasonably satisfactory to the Indemnified Party. If the Indemnifying Party elects to defend a claim or demand, the Indemnified Party shall not pay or settle such claim or demand without the consent of the Indemnifying Party.
(b) In the event any Indemnified Party shall have a claim against any Indemnifying Party hereunder which does not involve a claim or demand being asserted against or sought to be collected from it by a third party, the Indemnified Party shall send a Claim Notice with respect to such claim to the Indemnifying Party.
(c) After delivery of a Claim Notice, so long as any right to indemnification exists pursuant to this Article IX, the affected parties each agree to retain all books and records related to such Claim Notice. In each instance, the Indemnified Party shall have the right to be kept fully informed by the Indemnifying Party and its legal counsel with respect to any legal proceedings. Any information or documents made available to any party hereunder and designated as confidential by the party providing such information or documents and which is not otherwise generally available to the public and not already within the knowledge of the party to whom the information is provided (unless otherwise covered by the confidentiality provisions of any other agreement among the parties hereto, or any of them), and except as may be required by applicable law, shall not be disclosed to any third Person (except for the representatives of the party being provided with the information, in which event the party being provided with the information shall request its representatives not to disclose any such information which it otherwise required hereunder to be kept confidential).
(d) Anything contained herein to the contrary notwithstanding, Seller shall have the sole right to control the defense and settlement of the Audit Adjustments and any appeal thereof; it being understood and agreed, however, that (i) the Company shall be responsible for the payment of forty per cent (40%) of the additional federal, state or local income taxes referred to in subclause (x) of clause (ii) of Section 9.01(a) and (ii) unless the prior written consent of Purchaser shall be obtained (which consent shall not be unreasonably withheld), such settlement must include a full and unconditional release of the Company and the Subsidiary reasonably satisfactory to Purchaser. Seller shall retain an accounting firm and/or counsel (who shall be reasonably acceptable to Purchaser; it being agreed that Coopers & ▇▇▇▇▇▇▇ L.L.P. and ▇▇▇▇▇▇ & ▇▇▇▇▇ shall be acceptable to Purchaser) to represent the Company and the Subsidiary in connection with the Audit Adjustments and shall pay the reasonable fees and disbursements of such accountants and counsel. Purchaser shall have the right to retain its own accountants and counsel with respect to the Audit Adjustments but the fees and disbursements of such accountants and counsel shall be at the expense of Purchaser. Purchaser shall, and shall cause the Company and the Subsidiary and its and their accountants and counsel to cooperate with Seller and its accountants and counsel in the defense of the Audit Adjustments. Purchaser shall not, and shall cause the Company and the Subsidiary not to, pay or settle the Audit Adjustments without the prior written consent of Seller. Nothing contained in this Section 9.02(d) is intended to modify Section 9.02(c), which shall also apply to the matters set forth in this Section 9.02(d).
Appears in 2 contracts
Sources: Stock Purchase Agreement (National Tobacco Co Lp), Stock Purchase Agreement (National Tobacco Co Lp)
Method of Asserting Claims. (a) If a Party entitled to indemnification pursuant to the terms hereof (the “Indemnified Party”) intends to seek indemnification under this Article 4 from the other Party (the “Indemnifying Party”), the Indemnified Party shall give the Indemnifying Party notice of such claim All claims for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual LKC shall be asserted and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of any claim or action by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or delay by an Indemnified Party to so notify the Indemnifying Party (resolved as set forth above) shall not relieve the Indemnifying Party of its indemnification obligations hereunder to the Indemnified Party, however the liability which the Indemnifying Party has to the Indemnified Party pursuant to the terms of in this Article 4 (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced to the extent that any such delay in or failure to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for hereinSection 7.
(b) The Indemnifying PartyIn the event that any written claim or demand for which Spie Enertrans would be liable to LKC is asserted against or sought to be collected from LKC by a third party LKC shall promptly, but in no event more than 15 days following LKC's receipt of such claim or demand, notify Spie Enertrans of such claim or demand and the amount or the estimate amount thereof to the extent then feasible (which estimate shall not in any manner prejudice the right of LKC to indemnification to the fullest extent provided hereunder; (the "Third Party Claim Notice") and in the event that LKC shall assert a claim for indemnity under this section 7, not including a third party claim, LKC shall notify Spie Enertrans promptly following its discovery of the facts or circumstances giving rise thereto (together, with a Third Party Claim Notice, a "Claim Notice"); provided that the failure to notify on the part of LKC in the manner set forth herein shall not foreclose any rights otherwise available to LKC hereunder, except to the extent that Spie Enertrans is prejudiced by such failure to notify. Spie Enertrans shall have 30 days from the personal delivery or mailing of the Third Party Claim Notice (except that such a period shall be decreased to a time 10 days before a scheduled appearance date in a litigated matter) (the "Notice Period") to notify LKC (i) whether or not Spie Enertrans disputes the liability of Spie Enertrans to LKC hereunder with respect to such - 11 - 13 claim or demand and ii) whether or not it desires to defend LKC against such claim or demand. All costs and expenses incurred by Spie Enertrans in defending such claim or demand shall be a liability of, and shall be paid by, Spie Enertrans. In the event that Spie Enertrans notifies LKC within the Notice Period that it desires to defend LKC against such claim or demand, except as hereinafter provided, Spie Enertrans shall have the right to defend LKC by appropriate proceedings and by counsel reasonably acceptable to LKC. If LKC desires to participate in, but not control, any such defense or settlement it may do so at its sole cost and expense, . LKC shall have not settle a claim or demand without the right to assume the defence consent of any claim, action, suit, proceeding or investigation brought against the Indemnified Party with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will Spie Enertrans. Spie Enertrans shall not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld)of LKC, settle, compromisecompromise or offer to settle or compromise any such claim or demand on a basis which would result in the imposition of a consent order, consent injunction or decree which would restrict the future activity or conduct of, or which would otherwise have a material adverse effect on, LKC or any subsidiary or Affiliate thereof. If Spie Enertrans elects not to defend LKC against such claim or demand, whether by not giving LKC timely notice as provided above or otherwise, then the entry amount of any judgment in such claim or otherwise seek to terminate any actiondemand, suitor, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants in same be contested by LKC, then that portion of any such action, suit, proceeding claim or investigation include both the Indemnified Party demand as to which such defense is unsuccessful (and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which shall be at the Indemnifying Party’s expense, to represent the Indemnified Party and to otherwise participate in the defence of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Party.expenses
Appears in 1 contract
Sources: Indemnity and Cooperation Agreement (Railworks Corp)
Method of Asserting Claims. All claims for indemnification by the -------------------------- Buyer or any other Indemnified Person pursuant to this Section 10 shall be made in accordance with the provisions of this section.
(a) If a Party Whenever any claim shall arise for indemnification hereunder, the Buyer party or parties entitled to indemnification pursuant (the "indemnified party") ----------------- shall promptly notify Seller or parties obligated to provide indemnification (the "indemnifying party") of the claim and, when known, the facts constituting ------------------ the basis for such claim; provided, however, that the failure to so notify the -------- ------- indemnifying party shall not relieve the indemnifying party of its obligation hereunder to the terms hereof (extent such failure does not materially prejudice the “Indemnified Party”) intends to seek indemnification under this Article 4 from indemnifying party. In the other Party (the “Indemnifying Party”), the Indemnified Party shall give the Indemnifying Party notice event of such any claim for indemnification promptly following the receipt hereunder resulting from, arising out of, or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of in connection with any claim or action legal proceedings by a third party, promptly following receipt of written the notice of such third party claim or action. The failure of or delay by an Indemnified Party to so notify the Indemnifying Party (as set forth above) shall not relieve the Indemnifying Party of its indemnification obligations hereunder to the Indemnified Partyindemnifying party shall specify, however if known, the amount or an estimate of the amount of the liability which the Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced to the extent that any such delay in or failure to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for hereinarising therefrom.
(b) The Indemnifying PartyIn connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party to this Agreement, the indemnifying party at its sole cost and expense, shall have the right to assume the defence of any claim, action, suit, proceeding or investigation brought against the Indemnified Party expense and with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will notindemnified party may, without the Indemnified Party’s prior upon written consent (such consent not to be unreasonably withheld), settle, compromise, consent notice to the entry indemnified party, assume the defense of any judgment in such claim or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoinglegal proceeding if:
(i) if the defendants in any such action, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available indemnifying party acknowledges to the Indemnified Party that are additional indemnified party in writing, within fifteen (15) calendar days after receipt of notice from the indemnified party, its obligations to those available indemnify the indemnified party with respect to the Indemnifying Party and that in all elements of such circumstances representation by the same counsel would be inappropriate; orclaim;
(ii) if the Indemnified Party shall have indemnifying party provides the indemnified party with evidence reasonably concluded acceptable to the indemnified party that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall indemnifying party will have the right financial resources to retain separate counsel, the reasonable costs of which shall be at the Indemnifying Party’s expense, to represent the Indemnified Party defend against such third-party claim and to otherwise participate in the defence of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Party.fulfill its indemnification obligations hereunder;
Appears in 1 contract
Method of Asserting Claims. (a) If In the event that any claim or demand for which an Indemnifying Party would be liable to an Indemnified Party hereunder is asserted against or sought to be collected from an Indemnified Party by a third party (a "Third Party entitled Claim") or an Indemnified Party seeks indemnification from an Indemnifying Party in connection with any other type of claim for which indemnity may be sought hereunder (referred to indemnification pursuant to the terms hereof (the “Indemnified Party”) intends to seek indemnification under this Article 4 from the other herein as a "Non Third Party (the “Indemnifying Party”Claim"), the Indemnified Party shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as use reasonable efforts to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of any claim or action by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or delay by an Indemnified Party to so notify the Indemnifying Party in writing of such Third Party Claim or Non Third Party Claim, specifying the nature of such Third Party Claim or Non Third Party Claim arising hereunder and the amount or the estimated amount thereof to the extent then feasible (as set forth above) which estimate shall not relieve be conclusive of the final amount of such Third Party Claim or Non Third Party Claim) (the "Claim Notice"). The Indemnifying Party shall have twenty calendar days ------------- (or such earlier period of its indemnification obligations hereunder time as may be required for the filing of responsive pleadings to any legal action instituted with respect to the Third Party Claim or Non Third Party Claim or required due to contractual deadlines imposed upon the Indemnified Party by the contract in dispute but in any event, not less than 10 days) from the receipt of the Claim Notice (the "Response Notice Period") to notify the Indemnified Party, however the (A) whether ---------------------- or not it disputes its liability which the Indemnifying Party has to the Indemnified Party pursuant hereunder with respect to the terms of this Article 4 such Third Party Claim or Non Third Party Claim and (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect ofB) shall be reduced to the extent that notwithstanding any such delay in dispute, whether or failure to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for herein.
(b) The Indemnifying Partynot it will defend, at its sole cost and expense, shall have the right to assume the defence of any claim, action, suit, proceeding or investigation brought against the Indemnified Party against such Third Party Claim. No failure by an Indemnified Party to notify the Indemnifying Party of the existence or assertion of a claim for which indemnification may be sought shall constitute a defense to or waiver of such claim for indemnification except to the extent the Indemnifying Party may be able to prove that it has been materially prejudiced by such failure or delay.
(b) If the Indemnifying Party disputes its liability with counsel designated respect to such Third Party Claim or Non Third Party Claim or the amount thereof (whether or not the Indemnifying Party desires to defend the Indemnified Party against such Third Party Claim as provided in paragraphs (c) and (d) below), such dispute shall be resolved in accordance with Section 8.4 hereof. Pending the resolution of any dispute by the Indemnifying Party of its liability with respect to any Third Party Claim, such Third Party Claim shall not be settled without the prior written consent of the Indemnified Party and the Indemnifying Party, which consent shall not be unreasonably withheld or delayed.
(c) In the event that the Indemnifying Party notifies the Indemnified Party within the Response Notice Period that it will defend the Indemnified Party against a Third Party Claim, then the Indemnifying Party shall assume the defense thereof with counsel reasonably satisfactory acceptable to the Indemnified Party, and the Indemnified Party shall cooperate in all reasonable respects in such defense, including without limitation in making any appropriate counterclaim against the person asserting the Third Party Claim or any appropriate cross-complaint against any person (unless such counterclaim or cross-complaint would be against any other entity with which the Indemnified Party has ongoing business relations and would have a significant likelihood in the good faith judgment of the Indemnified Party of damaging such business relationships); provided that provided, however, the Indemnifying Party will shall not, without the Indemnified Party’s prior written consent (such of the Indemnified Party which consent shall not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment against the Indemnified Party or enter into any settlement or compromise which does not include, as an unconditional term thereof, the giving by the claimant or plaintiff to the Indemnified Party of a release, in or otherwise seek form and substance reasonably satisfactory to terminate any actionthe Indemnified Party, suit, proceeding, investigation or claim from all liability in respect of which indemnification may be sought hereunder (whether or not the such Third Party Claim. If any Indemnified Party is a party thereto) unless desires to participate in, but not control, any such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence defense or settlement, it may do so at its sole cost and shall permit them to consult with expense. If, in the employees and counsel (if any) reasonable opinion of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants in , any such action, suit, proceeding Third Party Claim or investigation include both the litigation or resolution of any such Third Party Claim involves an issue or matter which could reasonably be expected to have a material adverse effect on the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counselcontrol the defense or settlement of any such Third Party Claim at its cost and expense, the reasonable costs of which and such legal fees and expenses shall be at included as part of the indemnification obligation of the Indemnifying Party’s expense, to represent Party hereunder. If the Indemnified Party and should elect to otherwise exercise such right, the Indemnifying Party shall have the right to participate in in, but not control, the defence defense or settlement of such claimThird Party Claim at its sole cost and expense.
(d) If the Indemnifying Party elects not to defend the Indemnified Party against such Third Party Claim, actionwhether by not giving the Indemnified Party timely notice within the Response Notice Period as provided above or otherwise, suitthen the Indemnified Party shall, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification hereunder), have the right to defend, settle or compromise any such Third Party Claim with counsel of its own choosing. In the event the Indemnified Party proposes to settle a Third Party Claim, the Indemnified Party shall deliver to the Indemnifying Party written notice of the proposed settlement of the Third Party Claim, which the Indemnifying Party may reject in its reasonable judgment within thirty days of receipt of such notice. In the event the Indemnified Party settles such Third Party Claim over the objection of Indemnifying Party, dispute over such settlement shall be resolved as provided in Section 8.4 hereof.
(e) In the event an Indemnified Party has a claim for indemnification against the Indemnifying Party hereunder with respect to a Non Third Party Claim, the Indemnified Party shall send a Claim Notice with respect to such claim to the Indemnifying Party. If the Indemnifying Party disputes its liability with respect to such claim or demand, such dispute shall be resolved in accordance with Section 8.4 hereof; if the Indemnifying Party accepts or agrees with such claim or does not notify the Indemnified Party within the Response Notice Period that it disputes such claim, the amount of such claim shall be conclusively deemed a liability of the Indemnifying Party hereunder.
Appears in 1 contract
Method of Asserting Claims. (a) If a Party entitled to The party seeking indemnification pursuant to the terms hereof (the “Indemnified PartyIndemnitee”) intends will give prompt written notice to seek indemnification under this Article 4 from the other Party party or parties (the “Indemnifying PartyIndemnitor”)) of any Claim which it discovers or of which it receives notice after the Closing and which might give rise to a claim by it against Indemnitor under Section 9 hereof, stating the nature, basis and (to the extent known) amount thereof; provided that failure to give prompt notice shall not jeopardize the right of any Indemnitee to indemnification except to the extent such failure shall have materially prejudiced the ability of the Indemnitor to defend such Claim. Subject to the Indemnitor’s right to dispute in good faith a Claim asserted by Indemnitee and Indemnitor’s right to defend in good faith third party claims both as hereinafter provided, the Indemnified Party Indemnitor shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual satisfy its obligations and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of any claim or action by a third party, promptly following this Section 9 within thirty (30) days after receipt of written notice of such third party claim or action. The failure of or delay by an Indemnified Party to so notify thereof from the Indemnifying Party (as set forth above) shall not relieve the Indemnifying Party of its indemnification obligations hereunder to the Indemnified Party, however the liability which the Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced to the extent that any such delay in or failure to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for hereinIndemnitee.
(b) The Indemnifying Party, at its sole cost and expense, shall have In the right to assume the defence of any claim, action, suit, proceeding or investigation brought against the Indemnified Party with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will not, without the Indemnified Party’s prior written consent event there is a Disputed Claim (such consent not to be unreasonably withhelddefined below), settleIndemnitor shall be required to pay the Indemnitee the amount of such Claim for which Indemnitor has, compromisepursuant to a final determination, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder been found liable within ten (whether or not the Indemnified Party 10) days after there is a party theretofinal determination with respect to such Disputed Claim. The term “Disputed Claim” shall mean any Claim which Indemnitor, in good faith, objects to in writing within thirty (30) unless such settlement, compromise, consent or termination includes a release days after receiving notice of the Indemnified Party from all liabilities arising out Claim. As used in this 9.3(b), a final determination of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and a Disputed Claim shall permit them to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
be (i) a judgment of any court determining the validity of such Disputed Claim, if no appeal is pending from such judgment and if the defendants in any such action, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available time to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriateappeal therefrom has elapsed; or
(ii) an award of any arbitrator determining the validity of such Disputed Claim, if there is not pending any motion to set aside such award and if the Indemnified Party time within which to move to set aside such award has elapsed; (iii) a written termination of the dispute with respect to such Claim signed by all of the parties thereto; (iv) a written acknowledgment of Indemnitor that it no longer disputes the Claim; or (v) such other evidence of final determination of a Disputed Claim as shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same be acceptable to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which shall be at the Indemnifying Party’s expense, to represent the Indemnified Party and to otherwise participate in the defence of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Partyparties.
Appears in 1 contract
Sources: Asset Purchase Agreement (Bway Corp)
Method of Asserting Claims. (a) If a Party any person entitled to indemnification pursuant to the terms Section 5.1 hereof (an "Indemnitee") is threatened in writing with any claim, or any claim is presented in writing to, or any action or proceeding is formally commenced against, any of the “Indemnified Party”) intends Indemnitees which may give rise to seek the right of indemnification under this Article 4 from the other Party (the “Indemnifying Party”)hereunder, the Indemnified Party shall Indemnitee will promptly give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of any claim or action by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or thereof to each indemnifying party; provided, however, that any delay by an Indemnified Party to Indemnitee in so notify notifying the Indemnifying Party (as set forth above) indemnifying party shall not relieve the Indemnifying Party indemnifying party of its indemnification obligations any liability to any of the Indemnitees hereunder to the Indemnified Party, however the liability which the Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced except to the extent that any the indemnifying party shall have been actually prejudiced as a result of such delay in or failure to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for hereinfailure.
(b) The Indemnifying Partyindemnifying party or parties, at its sole cost and expenseby delivery of written notice to an Indemnitee within 30 days of notice of claim to indemnity from an Indemnitee, shall have the right may elect to assume the defence of any claim, action, suit, proceeding or investigation brought against the Indemnified Party with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such action, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which shall be at the Indemnifying Party’s expense, to represent the Indemnified Party and to otherwise participate in the defence defense of such claim, action, suit, action or proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Partyindemnifying party; provided, however, that (i) unless such written notice shall be accompanied by a written agreement of each indemnifying party acknowledging the liability of the indemnifying parties to the Indemnitees as a result of this Agreement for any indemnified damage which any Indemnitee might incur or suffer as a result of such claim, action or proceeding or the contesting thereof, each indemnifying party shall be jointly and severally liable for the attorneys' fees and expenses of the Indemnitee, if any, incurred in connection with defending such claim; (ii) counsel undertaking such defense shall be reasonably acceptable to the Indemnitee; (iii) the indemnifying parties shall mutually elect to contest such claim, action or proceeding and shall conduct and settle such contest in a joint manner, and if the indemnifying parties shall fail at any time to agree, the Indemnitee shall have no obligation to contest such claim, action or proceeding; and (iv) if the Indemnitee requests in writing that such claim, action or proceeding not to be contested, then it shall not be contested but shall not be covered by the indemnities provided herein. The indemnifying parties may settle an indemnifiable matter after delivering a written description of the proposed settlement to and receiving consent from the Indemnitee. In the event the Indemnitee unreasonably declines to consent to such settlement, then the Indemnitee shall have no right to indemnification beyond the amount of the proposed settlement. In the event the indemnifying parties jointly elect to contest an indemnifiable matter, HSOA and the SHAREHOLDERS shall permit the other party reasonable access to their respective books and records and shall otherwise cooperate in connection with such claim. If the indemnifying parties do not jointly elect to contest an indemnifiable matter, they shall cooperate with the Indemnitee to the extent any of them has knowledge of facts or circumstances relating to such matter, and the Indemnitee shall have the exclusive right to prosecute, defend, compromise, settle or pay any claim, but the Indemnitee shall not be obligated to do so; provided, however, that, should the Indemnitee elect not to exercise its right exclusively to prosecute, defend, compromise, settle or pay such claim, any indemnifying party may elect to do so at its sole expense.
Appears in 1 contract
Sources: Stock Purchase Agreement (Home Solutions of America Inc)
Method of Asserting Claims. (a) If a All ------------------------------ -------------------------- claims for indemnification by any Indemnified Party entitled to indemnification pursuant to the terms hereof (the “Indemnified Party”) intends to seek indemnification under this Article 4 X shall be asserted and resolved as follows: (a In the event that any claim or demand for which an Indemnifying Party would be liable to an Indemnified Party hereunder is asserted against or sought to be collected from such Indemnified Party by a third party, said Indemnified Party shall, within fifteen (15) days of such claim or demand being made, notify the other Indemnifying Party of such claim or demand, specifying the nature of and specific basis for such claim or demand and the amount or the estimated amount thereof to the extent then feasible (the “Indemnifying Party”"Claim Notice"). During such fifteen (15) day period, the Indemnified Party shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt not take any action or determination by the Indemnified Party of actual knowledge or information as file any response to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of any claim or action demand, it being the intent of the parties that any such response shall be prepared and submitted by a third party, promptly following receipt of written notice of such third party claim or actionthe Indemnifying Party. The failure estimate of or delay by an Indemnified Party to so notify Loss contained in the Claim Notice shall not limit the amount of the Indemnifying Party's ultimate liability under the claim. The Indemnifying Party (as set forth above) shall not relieve the Indemnifying Party of its indemnification obligations hereunder to the Indemnified Party, however the liability which the Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in with respect of) shall be reduced to the extent that any such delay in claim or failure demand if the Indemnified Party fails to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which notify the Indemnifying Party has under its indemnity provided for herein.
thereof in accordance with the provisions of this Agreement within said fifteen (b15) day period. The Indemnifying Party shall have 30 days from the personal delivery or mailing of the Claim Notice (the "Notice Period") to notify the Indemnified Party (i) whether or not the liability of the Indemnifying Party to the Indemnified Party hereunder with respect to such claim or demand is disputed, and (ii) whether or not the Indemnifying Party desires, at the sole cost and expense of the Indemnifying Party, to defend the Indemnified Party against such claim or demand; provided, however, that any Indemnified Party is hereby authorized prior to and during the Notice Period to file any motion, answer or other pleading which it shall deem necessary or appropriate to protect its interest or those of the Indemnifying Party and not unreasonably prejudicial to the Indemnifying Party. In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against such claim or demand, then, except as hereinafter provided, the Indemnifying Party shall have the right to defend by all appropriate proceedings, which proceedings shall be promptly settled or prosecuted by it to a final conclusion. If the Indemnified Party desires to participate in, but not control, any such defense or settlement it may do so at its sole cost and expense. If requested by the Indemnifying Party, shall have the right to assume the defence of any claim, action, suit, proceeding or investigation brought against the Indemnified Party agrees to cooperate with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access in contesting any claim or demand which the Indemnifying Party elects to all business records contest, or, if appropriate and other documents relevant related to such defence the claim in question, in making any counterclaim against the person asserting the third party claim or settlementdemand, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants or any cross complaint against any person but in any such action, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which shall be case at the Indemnifying Party’s expense, to represent the Indemnified Party sole cost and to otherwise participate in the defence of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Party.. No claim may be settled without the consent of the Indemnifying Party, unless such settlement includes the complete release of the Indemnifying Party. (b In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder which does not involve a claim or demand being asserted against or sought to be collected from it by a third party, the Indemnified Party shall send a Claim Notice with respect to such claim to the Indemnifying Party. If the Indemnifying Party does not notify the Indemnified Party within the Notice Period that it disputes such claim, the amount of such claim shall be conclusively deemed a liability of the Indemnifying Party hereunder. If the Indemnifying Party has disputed such claim, as provided above, such dispute shall be resolved by arbitration as provided in Article 13.11. 10.4
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by the SecureAlert Parties or the Distributor Parties (each, an "Indemnified Party") under this Article 12 shall be asserted and resolved as follows:
(a) If a Party entitled to indemnification pursuant to In the terms hereof (the “Indemnified Party”) intends to seek indemnification under this Article 4 from the other Party (the “Indemnifying Party”), the Indemnified Party shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of event that any claim or action demand for which SecureAlert or the Distributor (as the case may be, an "Indemnifying Party") would be liable to an Indemnified Party is asserted against or sought to be collected from such Indemnified Party by a third party, promptly such Indemnified Party shall promptly, but in no event later than the earlier to occur of (i) such date that is 15 days prior to the date on which a response to such claim or demand is due under applicable Law or (ii) the 30th day following its receipt of written notice of such third party claim or action. The failure of or delay by an Indemnified Party to so demand, notify the Indemnifying Party of such claim or demand, specifying the nature of such claim or demand and the amount or the estimated amount thereof to the extent then feasible (as set forth above) which estimate shall not relieve be conclusive of the final amount of such claim or demand) (the "Claim Notice"); provided, however, that the failure to promptly provide any such Claim Notice shall not affect such Indemnified Party's right to indemnification under Section 12.1, except to the extent that such failure to provide such Claim Notice promptly shall prevent or shall have prevented the Indemnifying Party of its indemnification obligations hereunder from properly or effectively defending the claim or demand or from recovering reimbursement or other damages to the Indemnified Party, however the liability which the Indemnifying Party has or Indemnified Party would otherwise be entitled, unless the Indemnifying Party, directly or indirectly, caused such failure. The Indemnifying Party shall have 30 days from its receipt of the Claim Notice (the "Notice Period") to notify the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced to the extent that any such delay in whether or failure to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for herein.
(b) The Indemnifying Partynot it desires, at its sole cost and expense, to defend the Indemnified Party against such claim or demand, and thereby assume control of such defense; provided, however, that the Indemnified Party is hereby authorized prior to and during the Notice Period to file any motion, answer or other pleading which it shall deem necessary or appropriate to protect its interests. If an Indemnified Party desires to participate in, but not control, any such defense or settlement, it may do so, which participation shall be at the Indemnifying Party's cost and expense unless (i) the Indemnifying Party has accepted liability for such claim in writing to the extent that it ultimately is found to be liable, or (ii) the Indemnifying Party is finally determined by a court having proper jurisdiction not to have any liability to the Indemnified Party with respect to such claim. If the Indemnifying Party disputes its liability with respect to such claim or demand or elects not to defend against such claim or demand, whether by not giving timely notice as provided above or otherwise, the Indemnified Party shall have the right but not the obligation to assume the defence of any claim, action, suit, proceeding defend against such claim or investigation brought against the Indemnified Party with counsel designated by demand.
(b) Unless the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that has accepted liability for a claim or demand in writing, the Indemnifying Party will not, without the Indemnified Party’s prior written consent (such consent shall not to be unreasonably withheld), settle, compromise, or offer to settle or compromise any such claim or demand without the prior written consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation (which consent shall not be unreasonably withheld or claimdelayed). The Indemnified Party shall not settle any claim or demand without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld or delayed) unless the Indemnifying Party has refused to accept liability for such claim or demand or elected not to defend the Indemnified Party against such claim or demand.
(c) To the extent the Indemnifying Party shall direct, control or participate in the defense or settlement of any third party claim or demand, the Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all to, during normal business hours, the relevant business records and other documents relevant subject to such defence or settlementany confidentiality restrictions applicable thereto, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Party at reasonable times during normal business hours. The Indemnified Party shall use its reasonable efforts to cooperate with the Indemnifying Party in the defense of all such claims. The Indemnifying Party shall keep the Indemnified Party fully apprised at all times as to the status of the defense or any settlement negotiations with respect thereto. The parties involved in the defense of any matter which is the subject of indemnification under this Section 12 shall cooperate in good faith in contesting all such claims, which cooperation shall include the retention and, upon request, the provision to the requesting person of records and information which are reasonably relevant to such claims, and in making employees available on a mutually convenient basis to provide additional information or explanation of any material hereunder or to testify at proceedings relating to such claims. Any actual and reasonable out-of-pocket expenses incurred by the Indemnified Party in connection with the foregoing shall be fully reimbursed by the Indemnifying Party.
(cd) Notwithstanding In the foregoing:
(i) if the defendants in any such action, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel event that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that a claim against the Indemnifying Party is hereunder which does not taking involve a claim or has not taken, all necessary steps demand being asserted against or sought to diligently defend such claim, action, suit, proceeding or investigationbe collected from it by a third party, the Indemnified Party has provided written notice of same shall promptly send a Claim Notice with respect to such claim or demand to the Indemnifying Party; provided, and however, that the failure to promptly provide any such Claim Notice shall not affect such Indemnified Party's right to indemnification under Section 12.1, except to the extent that such failure to provide such Claim Notice promptly shall prevent or shall have prevented the Indemnifying Party has from properly or effectively defending the claim or demand or from recovering reimbursement or other damages to which the Indemnifying Party or Indemnified Party would otherwise be entitled, unless the Indemnifying Party, directly or indirectly, caused such failure. If the Indemnifying Party does not rectified the situation within a reasonable time; then notify the Indemnified Party shall have within the right to retain separate counselNotice Period that it disputes such claim or demand, the reasonable costs amount of which such claim or demand shall be at the Indemnifying Party’s expense, to represent the Indemnified Party and to otherwise participate in the defence of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense conclusively deemed a liability of the Indemnifying PartyParty hereunder.
Appears in 1 contract
Sources: Distributor Sales, Service and License Agreement (Remote MDX Inc)
Method of Asserting Claims. All claims for indemnification by any Indemnified Party under this Article X shall be asserted and resolved as follows:
(a) If a Party entitled to indemnification pursuant to In the terms hereof (the “Indemnified Party”) intends to seek indemnification under this Article 4 from the other Party (the “Indemnifying Party”), the Indemnified Party shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of event that any claim or action demand for which an Indemnifying Party would be liable to an Indemnified Party hereunder is asserted against or sought to be collected from such Indemnified Party by a third party, promptly following receipt of written notice said Indemnified Party shall, within twenty (20) days of such third party claim or action. The failure of or delay by an Indemnified Party to so demand being made, notify the Indemnifying Party of such claim or demand, specifying the nature of and specific basis for such claim or demand and the amount or the estimated amount thereof to the extent then feasible (as set forth above) the "Claim Notice"). The estimate of Loss contained in the Claim Notice shall not relieve limit the amount of the Indemnifying Party of its indemnification obligations hereunder to Party's ultimate liability under the Indemnified Party, however the liability which the claim. The Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will shall not be obligated to indemnify the Indemnified Party in with respect of) shall be reduced to the extent that any such delay in claim or failure demand if the Indemnified Party fails to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which notify the Indemnifying Party has under its indemnity provided for herein.
thereof in accordance with the provisions of this Agreement within said twenty (b20) day period. The Indemnifying Party shall have thirty (30) days from the personal delivery or mailing of the Claim Notice (the "Notice Period") to notify the Indemnified Party (i) whether or not the liability of the Indemnifying Party to the Indemnified Party hereunder with respect to such claim or demand is disputed, and (ii) whether or not the Indemnifying Party desires, at the sole cost and expense of the Indemnifying Party, to defend the Indemnified Party against such claim or demand; provided, however, that any Indemnified Party is hereby authorized prior to and during the Notice Period to file any motion, answer or other pleading which it shall deem necessary or appropriate to protect its interest or those of the Indemnifying Party and not unreasonably prejudicial to the Indemnifying Party. In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against such claim or demand, then, except as hereinafter provided, the Indemnifying Party shall have the right to defend by all appropriate proceedings, which proceedings shall be promptly settled or prosecuted by it to a final conclusion. If the Indemnified Party desires to participate in, but not control, any such defense or settlement it may do so at its sole cost and expense. If requested by the Indemnifying Party, shall have the right to assume the defence of any claim, action, suit, proceeding or investigation brought against the Indemnified Party agrees to cooperate with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access in contesting any claim or demand which the Indemnifying Party elects to all business records contest, or, if appropriate and other documents relevant related to such defence the claim in question, in making any counterclaim against the person asserting the third party claim or settlementdemand, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants or any cross complaint against any person but in any such action, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which shall be case at the Indemnifying Party’s expense, to represent the Indemnified Party sole cost and to otherwise participate in the defence of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Party. No claim may be settled without the consent of the Indemnifying Party, unless such settlement includes the complete release of the Indemnifying Party.
(b) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder which does not involve a claim or demand being asserted against or sought to be collected from it by a third party, the Indemnified Party shall send a Claim Notice with respect to such claim to the Indemnifying Party. If the Indemnifying Party does not notify the Indemnified Party within the Notice Period that it disputes such claim, the amount of such claim shall be conclusively deemed a liability of the Indemnifying Party hereunder. If the Indemnifying Party has disputed such claim, as provided above, such dispute shall be resolved by arbitration as provided in Section 13.11.
Appears in 1 contract
Sources: Merger Agreement (Factual Data Corp)
Method of Asserting Claims. All claims for indemnification by a party entitled to be indemnified hereunder (an "Indemnitee") by another party hereto (an "Indemnitor"), except for claims relating to Taxes which shall be governed by the provisions of Article 8, shall be asserted and resolved as follows:
(a) If a Party entitled to indemnification pursuant to In the terms hereof (the “Indemnified Party”) intends to seek indemnification under this Article 4 from the other Party (the “Indemnifying Party”), the Indemnified Party shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of event that any claim or action demand for which an Indemnitee may claim indemnity is asserted against or sought to be collected from an Indemnitee by a third party, promptly the Indemnitee shall notify the Indemnitor within 20 days following the receipt of written notice by the Indemnitee of such third party claim or actiondemand, specifying the nature of such claim or demand and the amount or the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim and demand) (the "Claim Notice"). The failure Failure of or delay by an Indemnified Party Indemnitee to so notify the Indemnifying Party (as set forth above) an Indemnitor within such 20-day period shall not relieve the Indemnifying Party an Indemnitor of its indemnification obligations hereunder to the Indemnified Party, however the liability which the Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will be obligated obligation to indemnify the Indemnified Party in respect of) shall be reduced Indemnitee for such claim or demand except to the extent that any such the delay in giving notice of such claim or failure demand in fact materially prejudices (i) the defense of such claim or demand where the Indemnitor has the right to give notice as herein required prejudices the defence of any control such action, suit, proceeding, investigation defense or claim, or otherwise results in any increase (ii) participation in the liability which defense of such claim or demand where the Indemnifying Party Indemnitor has under its indemnity provided a right of participation. Any party hereto against whom a claim or demand is asserted by a third party shall, without prejudice to any right of indemnification hereunder, appropriately respond to such claim or demand (whether by answer, denial, request for hereinextension of time or other action) to such claim or demand within any applicable time period, so as to preserve any rights or remedies it or any other party may have against the person making such claim or demand.
(b) The Indemnifying PartyAn Indemnitor shall have thirty (30) days from the date on which the Claim Notice is duly given (the "Notice Period") to notify an Indemnitee (i) whether or not it disputes the liability of the Indemnitor to the Indemnitee hereunder with respect to such claim or demand and (ii) whether or not the Indemnitor desires, at its sole cost and expense, to defend the Indemnitee against such claim or demand. If an Indemnitor does not notify an Indemnitee within the Notice Period that it disputes its liability to the Indemnitee, the Indemnitor shall have be liable for the right to assume the defence amount of any claimresulting Losses.
(c) In the event an Indemnitor notifies an Indemnitee within the Notice Period that it desires to defend the Indemnitee against such a claim against or demand from the Indemnitee, actionthen except as hereinafter provided the Indemnitor shall defend, suitat its sole cost and expense, proceeding the Indemnitee by appropriate proceedings, shall use its best efforts to settle or investigation brought against prosecute such proceedings to a final conclusion in such a manner as to avoid any risk of the Indemnified Party with counsel designated by Indemnitee (or MAA, MAI or the Indemnifying Party Subsidiaries, if a Purchaser is the Indemnitee) becoming subject to any injunctive or other equitable order or relief or to liability for any other matter, and reasonably satisfactory to shall control the Indemnified Partyconduct of such defense; provided provided, however, that the Indemnifying Party will Indemnitor shall not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromiseof the Indemnitee, consent to the entry of any judgment against the Indemnitee or enter into any settlement or compromise which does not include, as an unconditional term thereof, the giving by the claimant or plaintiff to the Indemnitee of a release, in or otherwise seek form and substance reasonably satisfactory to terminate any actionthe Indemnitee, suit, proceeding, investigation or claim from all liability in respect of such claim or litigation. If the Indemnitee desires to participate in, but not control, any such defense or settlement, it may do so at its sole cost and expense.
(d) Prior to an Indemnitor's settling any claim or demand the defense of which indemnification may it has assumed control, the Indemnitor shall obtain the Indemnitee's approval, confirmed in writing in accordance with the notice provisions hereof, which approval shall not be sought hereunder (whether unreasonably withheld or not the Indemnified Party is a party thereto) unless delayed. If an Indemnitee notifies an Indemnitor of its disapproval of such settlement, compromisethe Indemnitee shall thereupon become liable, consent from and after the date of its disapproval, for the amount of any award, judgment, costs or termination includes a release expenses (including attorney fees) in excess of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party proposed settlement amount and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such action, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counselelect to control the defense of such claim at its sole cost and expense.
(e) In the event an Indemnitee should have a claim against an Indemnitor hereunder which does not involve a claim or demand being asserted against or sought to be collected from the Indemnitee (or MAA, MAI or the Subsidiaries, if a Purchaser is the Indemnitee) by a third party, the reasonable costs of which Indemnitee shall be at promptly send a Claim Notice with respect to such claim to the Indemnifying Party’s expense, to represent Indemnitor. If the Indemnified Party and to otherwise participate in Indemnitor does not notify the defence of Indemnitee within the Notice Period that it disputes such claim, action, suit, proceeding or investigation on behalf the Indemnitor shall be liable for the amount of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Partyany resulting Losses.
Appears in 1 contract
Method of Asserting Claims. (a) If a Party entitled to The party seeking indemnification pursuant to the terms hereof (the “Indemnified PartyIndemnitee”) intends will give prompt written notice to seek indemnification under this Article 4 from the other Party party or parties (the “Indemnifying PartyIndemnitor”)) of any Claim which it discovers or of which it receives notice after the Closing and which might give rise to a claim by it against Indemnitor under Section 7 hereof, stating the nature, basis and (to the extent known) amount thereof; provided that failure to give prompt notice shall not jeopardize the right of any Indemnitee to indemnification except to the extent such failure shall have materially prejudiced the ability of the Indemnitor to defend such Claim. Subject to the Indemnitor’s right to defend in good faith third party claims as hereinafter provided, the Indemnified Party Indemnitor shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual satisfy its obligations and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of any claim or action by a third party, promptly following this Section 9 within thirty (30) days after receipt of written notice of such third party claim or action. The failure of or delay by an Indemnified Party to so notify thereof from the Indemnifying Party (as set forth above) shall not relieve the Indemnifying Party of its indemnification obligations hereunder to the Indemnified Party, however the liability which the Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced to the extent that any such delay in or failure to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for hereinIndemnitee.
(b) The Indemnifying PartyIn case of any Claim or suit by a third party or by any governmental body, at its sole cost and expenseor any legal, administrative or arbitration proceeding with respect to which Indemnitor may have liability under the indemnity agreement contained in this Section 7, which the Indemnitor acknowledges is a Claim or demand for which it must indemnify or hold harmless the Indemnitee under Section 7.1 or 7.2 above, Indemnitor shall have be entitled to participate therein, and, to the right extent desired by it, to assume the defence defense thereof and to employ counsel reasonably acceptable to the Indemnitee to defend any such Claim or demand asserted against the Indemnitee. After notice from Indemnitor to Indemnitee of the election so to assume the defense thereof, Indemnitor will not be liable to Indemnitee for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense thereof, other than reasonable costs of investigation, unless Indemnitor does not actually assume the defense thereof following notice of such election. Indemnitee and Indemnitor will render to each other such assistance as may reasonably be required of each other in order to insure proper and adequate defense of any claim, action, such suit, proceeding Claim or investigation brought against proceeding. If the Indemnified Party with counsel designated by Indemnitor actually assumes the Indemnifying Party and reasonably satisfactory defense of the Indemnitee, the Indemnitee will not make any settlement of any Claim which might give rise to liability of Indemnitor under the Indemnified Party; provided that the Indemnifying Party will not, indemnity agreements contained in this Section without the Indemnified Party’s prior written consent (such of Indemnitor, which consent shall not to be unreasonably withheld)withheld if such settlement includes the unconditional release of Indemnitor, settle, compromise, consent and the Indemnitor shall not agree to the entry make any settlement of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or Claim that does not include the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a unconditional release of the Indemnified Party from all liabilities arising out Indemnitee without the written consent of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and shall permit them to consult with the employees and counsel (if any) of the Indemnified PartyIndemnitee.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such action, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which shall be at the Indemnifying Party’s expense, to represent the Indemnified Party and to otherwise participate in the defence of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Party.
Appears in 1 contract
Method of Asserting Claims. 9.2.1 The Indemnified Person shall give prompt written notification to the Warrantors of the Damages which form the basis of any claim for which the indemnification pursuant to this Section 9.2 may be sought (aa “Claim”), provided, however, that the failure to provide such notice shall not release the Warrantors from any obligations under this Section 9.2 except to the extent such Warrantors is materially prejudiced by such failure and shall not relieve such Warrantors from any other obligation or liability that it may have to any Indemnified Person otherwise than under this Section 9.2. Within ten (10) If a Party calendar days after delivery of such notification, the Warrantors may, upon written notice thereof to the Indemnified Person, assume control of the defense of such Claim with counsel reasonably satisfactory to the Indemnified Person, provided that the Warrantors acknowledges in writing to the Indemnified Person that any damages, fines, costs or other liabilities that may be assessed against the Indemnified Person in connection with such Claim constitute Damages for which the Indemnified Person shall be entitled to indemnification pursuant to this Section 9.2. If the terms hereof (the “Indemnified Party”) intends to seek indemnification under this Article 4 from the other Party (the “Indemnifying Party”)Warrantors do not assume control of such defense, the Indemnified Party Person shall give control such defense. The party not controlling the Indemnifying Party notice defense of such claim for indemnification promptly following Claim may participate therein at its own expense; provided that if the receipt or determination by Warrantors assumes control of such defense and the Indemnified Party Person reasonably concludes that the Warrantors and the Indemnified Person have conflicting interests or different defenses available with respect to such Claim, then the reasonable fees and expenses of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of any claim or action by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or delay by an Indemnified Party to so notify the Indemnifying Party (as set forth above) shall not relieve the Indemnifying Party of its indemnification obligations hereunder counsel to the Indemnified Party, however the liability which the Indemnifying Party has to the Indemnified Party pursuant to the terms Person shall be considered “Damages” for purposes of this Article 4 (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced to the extent that any such delay in or failure to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for hereinAgreement.
(b) The Indemnifying Party, at its sole cost and expense, shall have 9.2.2 In the event that the Warrantors exercises the right to assume the defence of undertake any claimsuch defense against any such Claim as provided above, action, suit, proceeding or investigation brought against the Indemnified Party Person shall cooperate with counsel designated the Warrantors in such defense and as soon as practicable make available to the Warrantors, at the Warrantors’ expense, all witnesses, pertinent records, materials and information in the Indemnified Person’s possession or under the Indemnified Person’s control relating thereto as is reasonably required by the Indemnifying Party and reasonably satisfactory to Warrantors. Similarly, in the event the Indemnified Party; provided that Person is, directly or indirectly, conducting the Indemnifying Party will notdefense against any such Claim, without the Warrantors shall cooperate with the Indemnified Party’s prior written consent (Person in such consent not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party defense and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such action, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences as soon as practicable make available to the Indemnified Party that are additional to those available to Person, at the Indemnifying Party Warrantors’ expense, all such witnesses, records, materials and that information in such circumstances representation the Warrantors’ possession or under the Warrantors’ control relating thereto as is reasonably required by the same counsel would Indemnified Person. The party controlling such defense shall keep the other party advised of the status of such Claim and the defense thereof and shall consider in good faith recommendations made by the other party with respect thereto. The Indemnified Person shall not agree to any settlement of such Claim without the prior written consent of the Warrantors, which shall not be inappropriate; orunreasonably withheld.
9.2.3 If a third party asserts that an Indemnified Person is liable to such third party for a monetary or other obligation which may constitute or result in Damages for which such Indemnified Person may be entitled to indemnification pursuant to this Article 9, and such Indemnified Person reasonably determines that it has a valid business reason to fulfill such obligation, then (i) such Indemnified Person shall be entitled to satisfy such obligation, without prior notice to or consent from the Warrantors, (ii) if the such Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps Person may make a claim for indemnification pursuant to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Partythis Section 9.2, and the Indemnifying Party has not rectified the situation within a reasonable time; then the (iii) such Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which Person shall be at the Indemnifying Party’s expense, reimbursed for any such Damages for which it is entitled to represent the Indemnified Party and indemnification pursuant to otherwise participate in the defence of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Partythis Section 9.2.
Appears in 1 contract
Sources: Share Purchase and Subscription Agreement (Ninetowns Internet Technology Group Co LTD)
Method of Asserting Claims. All claims for indemnification by Buyer under Section 12.01 will be asserted and resolved as follows:
(a) If a Party In the event any claim or demand in respect of which Buyer would be entitled to indemnification pursuant seek indemnity under Section 12.01 is asserted against or sought to be collected from Buyer by a Person other than the Buyer, Merger Subsidiary or any of their respective Affiliates (a “Third Party Claim”), Buyer shall deliver a written notice (a “Claim Notice”) to the terms hereof Stockholder Representative with reasonable detail regarding the Third Party Claim, including the basis therefor and a good faith reasonable calculation of the Damages claimed (taking into account the “Indemnified Party”information then available to Buyer), no later than five (5) intends Business Days following the date on which Buyer obtained actual knowledge of the events or circumstances giving rise to seek such claim or demand; provided, however, that the failure to so notify the Stockholder Representative shall not relieve the Equityholders of their obligations hereunder unless the Equityholders are actually prejudiced thereby. At the time the Third Party Claim is made and thereafter, Buyer shall provide the Stockholder Representative with copies of all materials in its possession or provided to it describing the facts or otherwise containing information regarding the basis for the Third Party Claim. The Stockholder Representative shall notify Buyer within the Dispute Period if the Equityholders dispute the claim for indemnification under this Article 4 from 12 or whether the Equityholders desire, at their sole cost and expense, to defend Buyer against such Third Party Claim.
(i) If the Stockholder Representative notifies Buyer within the Dispute Period that the Equityholders desire to defend Buyer with respect to the Third Party Claim pursuant to this Section 12.03, then the Stockholder Representative will, at its option, have the right to defend, with counsel selected by the Stockholder Representative, at the sole cost and expense of the Equityholders, such Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Equityholders to a final conclusion. Subject to the following clause (iii), if the Stockholder Representative assumes defense of a Third Party Claim, the Equityholders will have full control of such defense and proceedings, including any settlement thereof; provided, however, that Buyer may participate (but not control), at its own expense, in the defense of such Third Party Claim; and provided further, that if requested by the Stockholder Representative, Buyer will cooperate with the Stockholder Representative and its counsel in contesting any Third Party Claim that the Equityholders elect to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the Person asserting the Third Party Claim, or any cross-complaint against any Person (other than Buyer or any of its Affiliates).
(ii) Buyer will have the right to assume and maintain control of the defense of the Third Party Claim, at the sole cost of the Equityholders, if (A) the Stockholder Representative fails to notify Buyer within the Dispute Period that the Equityholders desire to defend the Third Party Claim pursuant to this Section 12.03 or (B) if the Stockholder Representative fails to give any notice whatsoever within the Dispute Period. If Buyer assumes and maintains control of the defense of any Third Party Claim, then Buyer will have the right to defend the Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by Buyer to a final conclusion or will be settled at the discretion of Buyer (subject to clause (iv) below); provided, however, that the Stockholder Representative may participate, at the expense of the Equityholders, in the defense of such Third Party Claim.
(iii) If Buyer maintains control of the defense of any Third Party Claim, the Stockholder Representative will be entitled to participate in any such defense with separate counsel at the expense of the Equityholders if, in the reasonable opinion of counsel to the Stockholder Representative, a conflict or potential conflict exists between Buyer and the Equityholders that would make such separate representation advisable. If the Equityholders maintain control of the defense of any Third Party Claim, Buyer will be entitled to participate in any such defense with separate counsel at its expense if, in the reasonable opinion of counsel to Buyer, a conflict or potential conflict exists between Buyer and the Equityholders that would make such separate representation advisable.
(iv) The Stockholder Representative shall be kept reasonably informed of all Third Party Claims at all stages thereof, whether or not it elects to defend such claims, and the parties hereto agree to cooperate fully with each other, and keep each other reasonably informed, in connection with the defense, negotiation or settlement of all Third Party Claims. Notwithstanding anything in this Section 12.03 to the contrary, neither Buyer nor the Stockholder Representative shall, without the written consent of the other Party party (the “Indemnifying Party”which consent shall not be unreasonably conditioned, withheld or delayed), settle or compromise any Third Party Claim or permit a default or consent to entry of any judgment. Notwithstanding the Indemnified Party shall give the Indemnifying Party notice of such claim foregoing, if a settlement offer solely for indemnification promptly following the receipt or determination money damages is made by the Indemnified Party applicable third party claimant, and the Stockholder Representative notifies Buyer in writing of actual knowledge or information as the Stockholder Representative’s willingness to accept the settlement offer and, subject to the factual applicable limitations of Section 12.01, pay the amount called for by such offer, and legal basis Buyer declines to accept such offer, Buyer may continue to contest such Third Party Claim, free of any claim which is participation by the Stockholder Representative, and the amount of any ultimate liability with respect to such Third Party Claim subject to indemnification and, where such claim results from the commencement of any claim or action by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or delay by an Indemnified Party to so notify the Indemnifying Party (as set forth above) hereunder shall not relieve the Indemnifying Party of its indemnification obligations hereunder be limited to the Indemnified Party, however lesser of (A) the liability which amount of the Indemnifying settlement offer that Buyer declined to accept or (B) the aggregate Damages of the Surviving Corporation with respect to such Third Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced to the extent that any such delay in or failure to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for hereinClaim.
(b) The Indemnifying PartyIn the event Buyer is entitled to indemnification under Section 12.01 with respect to Damages that do not involve a Third Party Claim (an “Indemnity Claim”), at its sole cost Buyer shall deliver a written notice (an “Indemnity Notice”) with reasonable detail regarding the Indemnity Claim, including the basis therefor and expense, shall have a good faith reasonable calculation of the right Damages claimed (taking into account the information then available to assume Buyer) no later than five (5) Business Days of the defence date on which Buyer obtained actual knowledge of any claim, action, suit, proceeding the events or investigation brought against the Indemnified Party with counsel designated by the Indemnifying Party and reasonably satisfactory circumstances giving rise to such claim to the Indemnified Party; Stockholder Representative. At the time the Indemnity Claim is made and thereafter, Buyer shall provide the Stockholder Representative with copies of all materials in its possession or provided that to it describing the Indemnifying Party will not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment in facts or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not containing information regarding the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of basis for the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and shall permit them to consult with the employees and counsel (if any) of the Indemnified PartyIndemnity Claim.
(c) Notwithstanding The Stockholder Representative shall notify Buyer within the foregoing:
(i) Dispute Period if the defendants in any Equityholders dispute the claim for indemnification under this Article 12. If the Stockholder Representative has timely disputed indemnification with respect to such actionIndemnity Claim, suit, proceeding or investigation include both the Indemnified Party Buyer and the Indemnifying Party, and Stockholder Representative shall proceed in good faith to negotiate a resolution of such dispute. If the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party dispute is not taking or has not takenresolved through such negotiations within sixty (60) days after the delivery of the Indemnity Notice, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which dispute shall be at resolved fully and finally in accordance with the Indemnifying Party’s expense, to represent the Indemnified Party terms and to otherwise participate in the defence provisions of such claim, action, suit, proceeding or investigation on behalf Section 13.06 of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Partythis Agreement.
Appears in 1 contract
Sources: Merger Agreement (Amc Entertainment Holdings, Inc.)
Method of Asserting Claims. (a) Whenever a party (the “Claimant”) has incurred or suffered Damages for which it is entitled to indemnification under this Article IX, the Claimant shall, prior to the expiration of the representation, warranty, covenant or agreement to which such claim relates, give written notice of such claim (a “Claim Notice”) to the applicable party (the “Recipient”). Each Claim Notice shall state the amount of claimed Damages (the “Claimed Amount”), if known, and the basis for such claim.
(b) Within 20 days after delivery of a Claim Notice, Recipient shall provide to the Claimant a written response (the “Response Notice”) in which the Recipient shall: (i) agree that all of the Claimed Amount is owed to Claimant, (ii) agree that part, but not all, of the Claimed Amount (the “Agreed Amount”) is owed to Claimant, or (iii) contest that any of the Claimed Amount is owed to Claimant. The Recipient may contest the payment of all or a portion of the Claimed Amount only based upon a good faith belief that all or such portion of the Claimed Amount does not constitute Damages for which the Claimant is entitled to indemnification under this Article IX. If no Response Notice is delivered by the Recipient within such 20-day period, the Recipient shall be deemed to have agreed that all of the Claimed Amount is owed to Claimant.
(c) If the Recipient in the Response Notice agrees (or is deemed to have agreed) that all of the Claimed Amount is owed to Claimant, Recipient shall promptly pay to Claimant an amount in cash equal to the Claimed Amount. If the Recipient in the Response Notice agrees that part, but not all, of the Claimed Amount is owed to Claimant, the Recipient shall promptly pay to Claimant an amount in cash equal to the Agreed Amount set forth in such Response Notice. Acceptance by Claimant of part payment of any Claimed Amount shall be without prejudice to Claimant's right to claim the balance of any such Claimed Amount.
(d) Claimant shall give prompt written notification to the Recipient of the commencement of any action, suit or proceeding relating to a Party third party claim for which indemnification pursuant to this Article IX may be sought. Within 20 days after delivery of such notification, the Recipient may, upon written notice thereof to Claimant, assume control of the defense of such action, suit or proceeding with counsel reasonably satisfactory to Claimant, provided the Recipient acknowledges in writing to Claimant that any damages, fines, costs or other liabilities that may be assessed against Claimant in connection with such action, suit or proceeding constitute Damages for which Claimant shall be entitled to indemnification pursuant to the terms hereof (the “Indemnified Party”) intends to seek indemnification under this Article 4 from IX. If the Recipient does not so assume control of such defense, Claimant shall control such defense. The party not controlling such defense may participate therein at its own expense; provided that if the Recipient assumes control of such defense and Claimant reasonably concludes that the Recipient and Claimant have conflicting interests or different defenses available with respect to such action, suit or proceeding, the reasonable fees and expenses of counsel to Claimant shall be considered “Damages” for purposes of this Agreement. The party controlling such defense shall keep the other Party (the “Indemnifying Party”), the Indemnified Party shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of any claim or action by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or delay by an Indemnified Party to so notify the Indemnifying Party (as set forth above) shall not relieve the Indemnifying Party of its indemnification obligations hereunder to the Indemnified Party, however the liability which the Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced to the extent that any such delay in or failure to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for herein.
(b) The Indemnifying Party, at its sole cost and expense, shall have the right to assume the defence of any claim, action, suit, proceeding or investigation brought against the Indemnified Party with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release advised of the Indemnified Party from all liabilities arising out status of such action, suit, proceeding, investigation suit or claim. The Indemnified Party will give to proceeding and the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, defense thereof and shall permit them consider in good faith recommendations made by the other party with respect thereto. Claimant shall not agree to consult with the employees and counsel (if any) any settlement of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such action, suitsuit or proceeding without the prior written consent of the Recipient, proceeding which shall not be unreasonably withheld, conditioned or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available delayed. The Recipient shall not agree to the Indemnified Party that are additional to those available to the Indemnifying Party and that in any settlement of such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suitsuit or proceeding without the prior written consent of Claimant, proceeding which shall not be unreasonably withheld, conditioned or investigationdelayed (it being understood that it is reasonable to withhold such consent if, among other things, the Indemnified Party has provided written notice settlement or the entry of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within judgment (A) lacks a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs complete release of which shall be at the Indemnifying Party’s expense, to represent the Indemnified Party and to otherwise participate in the defence of such claim, action, suit, proceeding Claimant for all liability with respect thereto or investigation (B) imposes any liability or obligation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying PartyClaimant).
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by any Indemnified Party under this Article IX shall be asserted and resolved as follows:
(a) If a Party entitled to indemnification pursuant to In the terms hereof (the “Indemnified Party”) intends to seek indemnification under this Article 4 from the other Party (the “Indemnifying Party”), the Indemnified Party shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of event that any claim or action demand for which an Indemnifying Party would be liable to an Indemnified Party hereunder is asserted against or sought to be collected from such Indemnified Party by a third party, promptly following receipt of written notice said Indemnified Party shall, within thirty (30) days of such third party claim or action. The failure of or delay by an Indemnified Party to so demand being made, notify the Indemnifying Party of such claim or demand, specifying the nature of and specific basis for such claim or demand and the amount or the estimated amount thereof to the extent then feasible (as set forth above) the "Claim Notice"). The estimate of Loss contained in the Claim Notice shall not relieve limit the amount of the Indemnifying Party of its indemnification obligations hereunder to Party's ultimate liability under the Indemnified Party, however the liability which the claim. The Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will shall not be obligated to indemnify the Indemnified Party in with respect of) shall be reduced to the extent that any such delay in claim or failure demand if the Indemnified Party fails to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which notify the Indemnifying Party has under its indemnity provided for herein.
thereof in accordance with the provisions of this Agreement within said thirty (b30) day period. The Indemnifying Party, at its sole cost and expense, Party shall have 30 days from the right personal delivery or mailing of the Claim Notice (the "Notice Period") to assume the defence of any claim, action, suit, proceeding or investigation brought against notify the Indemnified Party with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (i) whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release liability of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such action, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional hereunder with respect to those available to such claim or demand is disputed, and (ii) whether or not the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not takendesires, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which shall be at the Indemnifying Party’s expense, to represent the Indemnified Party sole cost and to otherwise participate in the defence of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Party, to defend the Indemnified Party against such claim or demand; provided, however, that any Indemnified Party is hereby authorized prior to and during the Notice Period to file any motion,
(b) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder which does not involve a claim or demand being asserted against or sought to be collected from it by a third party, the Indemnified Party shall send a Claim Notice with respect to such claim to the Indemnifying Party. If the Indemnifying Party does not notify the Indemnified Party within the Notice Period that it disputes such claim, the amount of such claim shall be conclusively deemed a liability of the Indemnifying Party hereunder. If the Indemnifying Party has disputed such claim, as provided above, such dispute shall be resolved by arbitration as provided in Article 12.11.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Wheels Sports Group Inc)
Method of Asserting Claims. The party making a claim under this Section 7 is referred to as the "Indemnified Party" and the party against whom such claims are asserted under this Section 7 is referred to as the "Indemnifying Party". All claims by any Indemnified Party under this Section 7 shall be asserted and resolved as follows:
(a) If a Party entitled to indemnification pursuant to In the terms hereof (the “Indemnified Party”) intends to seek indemnification under this Article 4 from the other Party (the “Indemnifying Party”), the Indemnified Party shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of event that any claim or action demand for which an Indemnifying Party would be liable to an Indemnified Party hereunder is asserted against or sought to be collected from such Indemnified Party by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or delay by an said Indemnified Party to so shall with reasonable promptness notify the Indemnifying Party (as set forth above) shall not relieve in writing the Indemnifying Party of its indemnification obligations hereunder such claim or demand, specifying the basis for such claim or demand, and the amount or the estimated amount thereof to the extent then determinable (which estimate shall not be conclusive of the final amount of such claim and demand; the "Claim Notice"); provided, however, that any failure to give such Claim Notice will not be deemed a waiver of any rights of the Indemnified Party except to the extent the rights of the Indemnifying Party are actually prejudiced by such failure. The Indemnifying Party, upon request of the Indemnified Party, shall retain counsel (who shall be reasonably acceptable to the Indemnified Party, however the liability which the Indemnifying Party has ) to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced to the extent that any such delay in or failure to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for herein.
(b) The Indemnifying Party, at its sole cost and expense, shall have the right to assume the defence of any claim, action, suit, proceeding or investigation brought against the Indemnified Party with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such action, suit, proceeding or investigation include both represent the Indemnified Party and shall pay the reasonable fees and disbursements of such counsel with regard thereto; provided, however, that any Indemnified Party is hereby authorized prior to the date on which it receives written notice from the Indemnifying Party designating such counsel, to retain counsel, whose fees and expenses shall be at the expense of the Indemnifying Party, to file any motion, answer or other pleading and take such other action which it reasonably shall deem necessary to protect its interests or those of the Indemnifying Party until the date on which the Indemnified Party is advised by counsel that there are legal defences available to receives such notice from the Indemnified Party that are additional to those available to Indemnifying Party. After the Indemnifying Party and that in shall retain such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not takencounsel, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate its own counsel, but the reasonable costs fees and expenses of which such counsel shall be at the expense of such Indemnified Party unless (x) the Indemnifying Party’s expense, to represent Party and the Indemnified Party and shall have mutually agreed to otherwise participate the retention of such counsel or (y) the representation of both parties by the same counsel (in the defence opinion of such claimcounsel) would be inappropriate due to actual or potential differing interests between them, actionin which case such fees shall be paid by the Indemnifying Party. The Indemnifying Party shall not, suitin connection with any proceedings or related proceedings in the same jurisdiction, proceeding be liable for the fees and expenses of more than one such firm for the Indemnified Party (except to the extent the Indemnified Party retained counsel to protect its (or investigation on behalf the Indemnifying Party's) rights prior to the selection of counsel by the Indemnifying Party). If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel in contesting any claim or demand which the Indemnifying Party defends. A claim or demand may not be settled by the Indemnifying Party without the prior written consent of the Indemnified Party (which consent will not be unreasonably withheld) unless, as part of such settlement, the Indemnified Party shall receive a full and unconditional release reasonably satisfactory to the Indemnified Party. For further certainty.
(b) In the event any Indemnified Party shall have a claim against any Indemnifying Party hereunder which does not involve a claim or demand being asserted against or sought to be collected from it by a third party, only one legal firm may be engaged at the expense of Indemnified Party shall send a Claim Notice with respect to such claim to the Indemnifying Party.
(c) After delivery of a Claim Notice, so long as any right to indemnification exists pursuant to this Section 7 the affected parties each agree to retain all Books and Records related to such Claim Notice. In each instance, the Indemnified Party shall have the right to be kept fully informed by the Indemnifying Party and its legal counsel with respect to any legal proceedings. Any information or documents made available to any party hereunder and designated as confidential by the party providing such information or documents and which is not otherwise generally available to the public and not already within the knowledge of the party to whom the information is provided (unless otherwise covered by the confidentiality provisions of any other agreement among the parties hereto, or any of them), and except as may be required by applicable Law, shall not be disclosed to any third Person (except for the representatives of the party being provided with the information, in which event the party being provided with the information shall request its representatives not to disclose any such information which it otherwise required hereunder to be kept confidential).
Appears in 1 contract
Method of Asserting Claims. (a) If a Party any person entitled to indemnification pursuant to the terms Section 6.1 hereof (an "Indemnitee") is threatened in writing with any claim, or any claim is presented in writing to, or any action or proceeding is formally commenced against, any of the “Indemnified Party”) intends Indemnitees which may give rise to seek the right of indemnification under this Article 4 from the other Party (the “Indemnifying Party”)hereunder, the Indemnified Party shall Indemnitee will promptly give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of any claim or action by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or thereof to each indemnifying party; provided, however, that any delay by an Indemnified Party to Indemnitee in so notify notifying the Indemnifying Party (as set forth above) indemnifying party shall not relieve the Indemnifying Party indemnifying party of its indemnification obligations any liability to any of the Indemnitees hereunder to the Indemnified Party, however the liability which the Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced except to the extent that any such delay in or failure to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for herein.
(b) The Indemnifying Party, at its sole cost and expense, indemnifying party shall have the right been actually prejudiced as a result of such failure. The indemnifying party or parties, by delivery of written notice to an Indemnitee within 30 days of notice of claim to indemnity from an Indemnitee, may elect to assume the defence of any claim, action, suit, proceeding or investigation brought against the Indemnified Party with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such action, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which shall be at the Indemnifying Party’s expense, to represent the Indemnified Party and to otherwise participate in the defence defense of such claim, action, suit, action or proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Partyindemnifying party; provided, however, that (a) unless such written notice shall be accompanied by a written agreement of each indemnifying party acknowledging the liability of the indemnifying parties to the Indemnitees as a result of this Agreement for any indemnified damage which any Indemnitee might incur or suffer as a result of such claim, action or proceeding or the contesting thereof, each indemnifying party shall be jointly and severally liable for the attorneys' fees and expenses of the Indemnitee, if any, incurred in connection with defending such claim; (b) counsel undertaking such defense shall be reasonably acceptable to the Indemnitee; (c) the indemnifying parties shall mutually elect to contest such claim, action or proceeding and shall conduct and settle such contest in a joint manner, and if the indemnifying parties shall fail at any time to agree, the Indemnitee shall have no obligation to contest such claim, action or proceeding and (d) if the Indemnitee requests in writing that such claim, action or proceeding not to be contested, then it shall not be contested but shall not be covered by the indemnities provided herein. The indemnifying parties may settle an indemnifiable matter after delivering a written description of the proposed settlement to and receiving consent from the Indemnitee. In the event the Indemnitee unreasonably declines to consent to such settlement, then the Indemnitee shall have no right to indemnification beyond the amount of the proposed settlement. In the event the indemnifying parties jointly elect to contest an indemnifiable matter, the Surviving Corporation, Parent and the Principals shall permit each other reasonable access, subject to the provisions of Section 4.6 hereof, to their respective books and records and shall otherwise cooperate in connection with such claim. If the indemnifying parties do not jointly elect to contest an indemnifiable matter, they shall cooperate with the Indemnitee to the extent any of them has knowledge of facts or circumstances relating to such matter, and the Indemnitee shall have the exclusive right to prosecute, defend, compromise, settle or pay any claim, but the Indemnitee shall not be obligated to do so; provided, however, that, should the Indemnitee elect not to exercise its right exclusively to prosecute, defend, compromise, settle or pay such claim, any indemnifying party may elect to do so at its sole expense. To secure their obligations pursuant to the provisions of this Section, the Principals agree to escrow shares of Parent Common Stock issuable to them in the Merger with an aggregate value of $800,000.00 (based upon the Closing Price), pursuant to the terms and conditions of the Escrow Agreement. Indemnity obligations hereunder shall be satisfied, in the case of indemnification of any Buyer Indemnified Person, through the release of Parent Common Stock pursuant to the Escrow Agreement, such shares to be valued as of the last reported sale on the last trading day prior to the release as reported in The Wall Street Journal, or its successor. Survival. The representations and warranties of the Parties set forth in this Agreement shall survive the Closing and the consummation of the transactions contemplated hereby and continue until 12 months after the Closing Date and shall not be affected by any examination made for or on behalf of any Party or the knowledge of any of their respective officers, directors, stockholders, employees or agents. Notwithstanding the foregoing, the representations and warranties contained in Section 2.23 relating to environmental matters shall survive the Closing and the consummation of the transactions contemplated thereby indefinitely; and the representations and warranties contained in Section 2.9 relating to tax matters shall survive the Closing and the consummation of the transactions contemplated thereby and continue until the expiration of the applicable statute of limitations relating to such tax representations. If a notice is given in accordance with the Escrow Agreement before expiration of such periods, then (notwithstanding the expiration of such time period) the representation or warranty applicable to such claim shall survive until, but only for purposes of, the resolution of such claim. Limitation. Notwithstanding anything to the contrary herein, except as provided in Section 6.4(c), the aggregate liability of the Principals for Damages under this Article VI shall not exceed the fair market value of the Escrow Shares, as determined in accordance with the Escrow Agreement, and the sole remedy of any Buyer Indemnified Person hereunder shall be to make a claim against the Escrow Shares as provided in the Escrow Agreement. Notwithstanding anything to the contrary herein, except as provided in Section 6.4(c), the aggregate liability of Parent for Damages under this Article VI shall not exceed $800,000. Except with respect to claims based on fraud, the rights of the Indemnitees under this Article VI shall be the exclusive remedy of the Buyer Indemnified Persons and the Indemnified Persons with respect to claims resulting from or relating to any misrepresentation, breach of warranty or failure to perform any covenant or agreement of any party hereto contained in this Agreement (provided that nothing contained in this Agreement shall limit or restrict any right or remedy Parent, the Buyer or the Surviving Corporation may have under any Environmental Law). No Company Stockholder shall have any right of contribution against the Company with respect to any breach by the Company of any of its representations, warranties, covenants or agreements.
Appears in 1 contract
Method of Asserting Claims. The party making a claim under this Section 9 is referred to as the "Indemnified Party" and the party against whom such claims are asserted under this Section 9 is referred to as the "Indemnifying Party". All claims by any Indemnified Party under this Section 9 shall be asserted and resolved as follows:
(a) If a Party entitled to indemnification pursuant to In the terms hereof (the “Indemnified Party”) intends to seek indemnification under this Article 4 from the other Party (the “Indemnifying Party”), the Indemnified Party shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of event that any claim or action demand for which an Indemnifying Party would be liable to an Indemnified Party hereunder is asserted against or sought to be collected from such Indemnified Party by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or delay by an said Indemnified Party to so shall with reasonable promptness notify the Indemnifying Party (as set forth above) shall not relieve in writing the Indemnifying Party of its indemnification obligations hereunder such claim or demand, specifying the basis for such claim or demand, and the amount or the estimated amount thereof to the extent then determinable (which estimate shall not be conclusive of the final amount of such claim and demand; the "Claim Notice"); provided, however, that any failure to give such Claim Notice will not be deemed a waiver of any rights of the Indemnified Party except to the extent the rights of the Indemnifying Party are actually prejudiced by such failure. The Indemnifying Party, upon request of the Indemnified Party, shall retain counsel (who shall be reasonably acceptable to the Indemnified Party, however the liability which the Indemnifying Party has ) to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced to the extent that any such delay in or failure to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for herein.
(b) The Indemnifying Party, at its sole cost and expense, shall have the right to assume the defence of any claim, action, suit, proceeding or investigation brought against the Indemnified Party with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such action, suit, proceeding or investigation include both represent the Indemnified Party and shall pay the reasonable fees and disbursements of such counsel with regard thereto; provided, however, that any Indemnified Party is hereby authorized prior to the date on which it receives written notice from the Indemnifying Party designating such counsel, to retain counsel, whose fees and expenses shall be at the expense of the Indemnifying Party, to file any motion, answer or other pleading and take such other action which it reasonably shall deem necessary to protect its interests or those of the Indemnifying Party until the date on which the Indemnified Party is advised by counsel that there are legal defences available to receives such notice from the Indemnified Party that are additional to those available to Indemnifying Party. After the Indemnifying Party and that in shall retain such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not takencounsel, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate its own counsel, but the reasonable costs fees and expenses of which such counsel shall be at the expense of such Indemnified Party unless (x) the Indemnifying Party’s expense, Party and the Indemnified Party shall have mutually agreed to represent the retention of such counsel or (y) the named parties of any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to otherwise participate actual or potential differing interests between them. The Indemnifying Party shall not, in connection with any proceedings or related proceedings in the defence same jurisdiction, be liable for the fees and expenses of more than one such firm for the Indemnified Party (except to the extent the Indemnified Party retained counsel to protect its (or the Indemnifying Party's) rights prior to the selection of counsel by the Indemnifying Party). If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel in contesting any claim or demand which the Indemnifying Party defends. A claim or demand may not be settled by the Indemnifying Party without the prior written consent of the Indemnified Party (which consent will not be unreasonably withheld) unless, as part of such claimsettlement, action, suit, proceeding or investigation on behalf of such the Indemnified Party shall receive a full and unconditional release reasonably satisfactory to the Indemnified Party. For further certainty.
(b) In the event any Indemnified Party shall have a claim against any Indemnifying Party hereunder which does not involve a claim or demand being asserted against or sought to be collected from it by a third party, only one legal firm may be engaged at the expense of Indemnified Party shall send a Claim Notice with respect to such claim to the Indemnifying Party.
(c) After delivery of a Claim Notice, so long as any right to indemnification exists pursuant to this Section 9 the affected parties each agree to retain all Books and Records related to such Claim Notice. In each instance, the Indemnified Party shall have the right to be kept fully informed by the Indemnifying Party and its legal counsel with respect to any legal proceedings. Any information or documents made available to any party hereunder and designated as confidential by the party providing such information or documents and which is not otherwise generally available to the public and not already within the knowledge of the party to whom the information is provided (unless otherwise covered by the confidentiality provisions of any other agreement among the parties hereto, or any of them), and except as may be required by applicable law, shall not be disclosed to any third Person (except for the representatives of the party being provided with the information, in which event the party being provided with the information shall request its representatives not to disclose any such information which it otherwise required hereunder to be kept confidential).
Appears in 1 contract
Method of Asserting Claims. (a) If a Party entitled to indemnification pursuant to In the terms hereof (the “Indemnified Party”) intends to seek indemnification under this Article 4 from the other Party (the “Indemnifying Party”), the Indemnified Party shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of event that any claim or action demand for which the Seller could be liable to a Purchaser Indemnitee hereunder is asserted or sought to be collected from a Purchaser Indemnitee by a third party, the Purchaser Indemnitee shall promptly following receipt of written notice notify the Seller in writing of such third party claim or action. The failure demand, specifying the nature of such claim or delay by an Indemnified Party to so notify demand and the Indemnifying Party (as set forth above) shall not relieve the Indemnifying Party of its indemnification obligations hereunder to the Indemnified Party, however the liability which the Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced amount or estimated amount thereof to the extent then feasible, which estimate shall not be conclusive of the final amount of such claim and demand (the "Claim Notice"). The Seller shall have 20 days from the date that such Claim Notice is made hereunder (the "Notice Period") to notify the Purchaser Indemnitee in writing (A) whether or not it disputes its liability to the Purchaser Indemnitee hereunder with respect to such claim or demand, and (B) notwithstanding any such delay in dispute, whether or failure to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for herein.
(b) The Indemnifying Partynot it desires, at its sole cost and expense, to defend the Purchaser Indemnitee against such claim or demand.
(a) If the Seller disputes its liability with respect to such claim or demand or the amount thereof (whether or not the Seller desires to defend the Purchaser Indemnitee against such claim or demand as provided in subsections (b) and (c) below), such dispute shall be resolved in compliance with Section 9.5. Pending the resolution of any dispute by the Seller of its liability with respect to any claim or demand, such claim or demand shall not be settled without the prior written consent of the Purchaser Indemnitee.
(b) In the event that the Seller notifies the Purchaser Indemnitee within the Notice Period that it desires to defend the Purchaser Indemnitee against such claim or demand then, except as hereinafter provided, the Seller shall have the right to assume defend the defence Purchaser Indemnitee by appropriate proceedings, which proceedings shall be promptly settled or prosecuted by it to a final conclusion in such a manner as to avoid any risk of the Purchaser Indemnitee becoming subject to liability for any claimother matter; provided, actionhowever, suit, proceeding or investigation brought against the Indemnified Party with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will Seller shall not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromiseof the Purchaser Indemnitee, consent to the entry of any judgment against the Purchaser Indemnitee or enter into any settlement or compromise which does not include, as an unconditional term thereof, the giving by the claimant or plaintiff to the Purchaser Indemnitee of a release, in form and substance satisfactory to the Purchaser Indemnitee, from all liability or otherwise seek to terminate any action, suit, proceeding, investigation or claim obligations in respect of which indemnification may be sought hereunder (whether such claim or litigation. If the Purchaser Indemnitee desires to participate in, but not the Indemnified Party is a party thereto) unless control, any such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence defense or settlement, it may do so at its sole cost and shall permit them to consult with expense through counsel of its choice. If, in the employees and counsel (if any) -35- reasonable opinion of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants in Purchaser Indemnitee, any such actionclaim or demand or the litigation or resolution of any such claim or demand involves an issue or matter which could have a material adverse effect on the business, suitoperations, proceeding assets, properties, or investigation include both prospects of the Indemnified Party and the Indemnifying PartyPurchaser Indemnitee, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party Purchaser Indemnitee shall have the right to retain separate counselcontrol the defense or settlement of any such claim or demand and its reasonable costs and expenses shall be included as part of the indemnification obligation of the Seller hereunder; provided, however, that the Purchaser Indemnitee shall not settle any such claim or demand without the prior written consent of the Seller, which consent shall not be unreasonably delayed or withheld. If the Purchaser Indemnitee should elect to exercise such right, the reasonable costs Seller shall have the right to participate in, but not control, the defense or settlement of such claim or demand at its sole cost and expense.
(i) If the Seller elects not to defend the Purchaser Indemnitee against such claim or demand, whether by not giving the Purchaser Indemnitee timely notice as provided above or otherwise, then the amount of any such claim or demand, or, if the same may be defended by the Seller or by the Purchaser Indemnitee (but the Purchaser Indemnitee shall not have any obligation to defend any such claim or demand), then that portion thereof as to which such defense is unsuccessful, in each case shall be at conclusively deemed to be a liability of the Indemnifying Party’s expenseSeller hereunder unless the Seller has disputed its liability to the Purchaser Indemnitee as provided in subsection (a) above, in which case such dispute shall be resolved as provided in Section 9.5.
(ii) In the event that a Purchaser Indemnitee should have a claim or demand against the Seller that does not involve a claim or demand being asserted or sought to represent be collected from it by a third party, the Indemnified Party and Purchaser Indemnitee shall promptly send a Claim Notice with respect to otherwise participate such claim to the Seller. If the Seller disputes its liability with respect to such claim or demand, such dispute shall be resolved in accordance with Section 9.5; if the defence of Seller does not notify the Purchaser Indemnitee within the Notice Period that it disputes such claim, action, suit, proceeding or investigation on behalf the amount of such Indemnified Party. For further certainty, only one legal firm may claim shall be engaged at the expense conclusively deemed a liability of the Indemnifying PartySeller hereunder.
(d) All claims for indemnification by a Seller Indemnitee hereunder shall be asserted and resolved utilizing the procedures set forth above, substituting in the appropriate place "Seller Indemnitee" for "Purchaser Indemnitee" and variations thereof and "Purchaser" for "Seller."
Appears in 1 contract
Sources: Stock Purchase Agreement (Harbert Equity Fund I LLC)
Method of Asserting Claims. All claims for indemnification by any Indemnified Party under Section 7.3 will be asserted and resolved as follows:
(a) If In the event any claim or demand in respect of which a Indemnified Party entitled might seek indemnity under Section 7.3 is asserted against or sought to indemnification pursuant to be collected from a Indemnifier by a Person other than the terms hereof Purchaser or any Affiliate of the Purchaser (the “Indemnified Party”) intends to seek indemnification under this Article 4 from the other a "Third Party (the “Indemnifying Party”Claim"), the Indemnified Party shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as deliver a Claim Notice with reasonable promptness to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from Indemnifier; provided that the commencement of any claim or action by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or delay by an Indemnified Party to so notify the Indemnifying Party (as set forth above) Indemnifier shall not relieve the Indemnifying Party Indemnifier of its indemnification obligations hereunder except to the Indemnified Party, however extent (and only to the liability extent) that such failure shall have caused the damages for which the Indemnifying Indemnifier is obligated to be greater than such damages would have been had the Indemnified Party has given the Indemnifier prompt notice hereunder. The Indemnifier will notify the Indemnified Party as soon as practicable within the Dispute Period (as defined herein) whether the Indemnifier disputes its liability to the Indemnified Party pursuant to under this Section 7.3 or whether the terms of this Article 4 (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced to the extent that any such delay in or failure to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for herein.
(b) The Indemnifying PartyIndemnifier desires, at its sole cost and expense, shall to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifier notifies the Indemnified Party within the Dispute Period that the Indemnifier desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 7.4(a), then the Indemnifier will have the right to assume the defence of any claim, action, suit, proceeding or investigation brought against the Indemnified Party defend with counsel designated selected by the Indemnifying Party and Indemnifier who shall be reasonably satisfactory acceptable to the Indemnified Party, at the sole cost and expense of the Indemnifier, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the Indemnifier to a final conclusion; provided that the Indemnifying Party will not, without Indemnifier shall obtain the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out (which consent shall not be unreasonably withheld, delayed or conditioned) before entering into any settlement of a claim or ceasing to defend such claim. If the Indemnifier assumes defense of a Third Party Claim, then such Indemnifier will have full control of such actiondefense and proceedings, suitincluding (except as provided in the immediately preceding sentence) any settlement thereof; provided, proceedinghowever, investigation that the Indemnified Party may, at the sole cost and expense of the Indemnified Party, at any time prior to the Indemnifier's delivery of the notice referred to in the first sentence of this clause (i), file any motion, answer or claimother pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests and not prejudicial to the Indemnifier; and provided, further, that the Indemnified Party may participate, at its own expense, in the defense of such Third Party Claim; and provided further, that if requested by the Indemnifier, the Indemnified Party will, at the sole cost and expense of the Indemnifier, cooperate with the Indemnifier and its counsel in contesting any Third Party Claim that the Indemnifier elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the Person asserting the Third Party Claim, or any cross-complaint against any Person (other than the Indemnified Party or any of its Affiliates). The Indemnified Party will give be entitled to participate in any such defense with separate counsel at the Indemnifying Party and its expense of the Indemnifier if (i) so requested by the Indemnifier to participate, (ii) in the reasonable opinion of counsel reasonable access to all business records and other documents relevant to such defence or settlement, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such action, suit, proceeding a conflict or investigation include both potential conflict exists between the Indemnified Party and the Indemnifying that would make such separate representation advisable or (iii) the Indemnified Party has defenses available to it that are not available to the Indemnifier.
(ii) If an Indemnifier fails to notify the Indemnified Party within the Dispute Period that the Indemnifier desires to defend the Third Party Claim pursuant to this Section 7.4(a), or if an Indemnifier gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the Indemnifier fails to give any notice whatsoever within the Dispute Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifier, the Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the Indemnified Party to a final conclusion or will be settled at the discretion of the Indemnified Party (with the consent of the Indemnifier, which consent will not be unreasonably withheld delayed or conditioned). If an Indemnified Party defends any Third Party Claim, then the Indemnifier shall be required to reimburse the Indemnified Party for the reasonable costs and expenses of defending such Third Party Claim within ten (10) Business Days after the date of receipt of any ▇▇▇▇. The Indemnified Party will have full control of such defense and proceedings, including (except as provided in the immediately preceding sentence) any settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifier will, at the sole cost and expense of the Indemnifier, cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is advised contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the Person asserting the Third Party Claim, or any cross-complaint against any Person (other than the Company Indemnifier or any of its Affiliates). The Indemnifier may participate in, but not control, any defense or settlement controlled by counsel the Indemnified Party pursuant to this clause (ii), and the Indemnifier will bear its own costs and expenses with respect to such participation.
(b) In the event an Indemnified Party should have a claim under Section 7.3 against any Indemnifier that there are legal defences available does not involve a Third Party Claim, the Indemnified Party shall deliver an Indemnity Notice with reasonable promptness to the Indemnifier. The Indemnifier shall notify the Indemnified Party within thirty (30) days following its receipt of such notice if the Indemnifier disputes its liability to the Indemnified Party that are additional to those available to under this Article 7. If the Indemnifying Party and that in such circumstances representation Indemnifier does not so notify the Indemnified Party, the claim specified by the same counsel would be inappropriate; or
(ii) if the Indemnified Party in such notice shall have reasonably concluded that be conclusively deemed to be a liability of the Indemnifying Party is not taking or has not takenIndemnifier under this Article 8, all necessary steps and the Indemnifier shall pay the amount of such liability to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Partyon demand, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counselor, the reasonable costs of which shall be at the Indemnifying Party’s expense, to represent the Indemnified Party and to otherwise participate in the defence case of any notice in which the amount of the claim (or any portion of the claim) is estimated, on such later date when the amount of such claim, action, suit, proceeding claim (or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense portion of the Indemnifying Partyclaim) becomes finally determined.
Appears in 1 contract
Sources: Common Stock Purchase Agreement (Maitland Trustees LTD)
Method of Asserting Claims. (a) If a Party entitled to indemnification pursuant to the terms hereof (the “Indemnified Party”) intends to seek indemnification under this Article 4 7 from the other Party (the “Indemnifying Party”), the Indemnified Party shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of any claim or action by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or delay by an Indemnified Party to so notify the Indemnifying Party (as set forth above) shall not relieve the Indemnifying Party of its indemnification obligations hereunder to the Indemnified Party, however the liability which the Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 7 (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced to the extent that any such delay in or failure to give notice as herein required prejudices the defence of any such claim, action, suit, proceeding, proceeding or investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for herein.
(b) The Indemnifying Party, at its sole cost and expense, shall have the right to assume the defence of any claim, action, suit, proceeding or investigation brought against the Indemnified Party with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will not, without the Indemnified Party’s 's prior written consent (such consent not to be unreasonably withheld, conditioned or delayed), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any claim, action, suit, proceeding, proceeding or investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such claim, action, suit, proceeding, investigation proceeding or claiminvestigation. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such claim, action, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which shall be at the Indemnifying Party’s 's expense, to represent the Indemnified Party and to otherwise participate in the defence of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only Only one legal firm may be engaged at the expense of the Indemnifying Party.
(d) Notwithstanding anything herein contained, an Indemnified Party shall have the right, at its sole cost and expense, to retain counsel to separately represent it in connection with the negotiation, settlement or defence of any claim, action, suit, proceeding or investigation brought by a third party; provided, that such counsel shall not, unless agreed to by the Indemnifying Party, assume control of the negotiation, settlement or defence.
(e) Except to the extent expressly provided herein, no Indemnified Party shall settle any claim, action, suit, proceeding or investigation with respect to which it has sought or intends to seek indemnification pursuant to this Article 7 without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed.
(f) If the Indemnifying Party does not assume the defence of any claim, action, suit, proceeding or investigation brought against the Indemnified Party, then the Indemnified Party shall have the right to do so on its own behalf and all such costs and expenses in so doing shall be added to the amount of the claim for indemnification hereunder by such Indemnified Party as against the Indemnifying Party.
Appears in 1 contract
Sources: Implementation Agreement (SNDL Inc.)
Method of Asserting Claims. (a) If In the event that any claim or demand for which an Indemnifying Party would be liable to an Indemnified Party hereunder is asserted against or sought to be collected from an Indemnified Party by a third party (a "Third Party entitled to Claim") or an Indemnified Party seeks indemnification pursuant to the terms hereof from an Indemnifying Party in connection with any other type of claim for which indemnity may be sought hereunder (the “Indemnified Party”) intends to seek indemnification under this Article 4 from the other collectively, and including Third Party (the “Indemnifying Party”Claims, a "Claim"), the Indemnified Party shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as use reasonable efforts to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of any claim or action by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or delay by an Indemnified Party to so notify the Indemnifying Party in writing of such Claim, specifying the nature of such Claim arising hereunder and the amount or the estimated amount thereof to the extent then feasible (as set forth above) which estimate shall not relieve be conclusive of the final amount of such Claim) (the "Claim Notice"). The Indemnifying Party shall have twenty calendar days (or such earlier period of its indemnification obligations hereunder time as may be required for the filing of responsive pleadings to any legal action instituted with respect to the Claim or required due to contractual deadlines imposed upon the Indemnified Party by the contract in dispute but in any event, not less than 10 days) from the receipt of the Claim Notice (the "Response Notice Period") to notify the Indemnified Party, however the (A) whether or not it disputes its liability which the Indemnifying Party has to the Indemnified Party pursuant hereunder with respect to the terms of this Article 4 such Claim and (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect ofB) shall be reduced to the extent that notwithstanding any such delay in dispute, if it is a Third Party Claim, whether or failure to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for herein.
(b) The Indemnifying Partynot it will defend, at its sole cost and expense, shall have the right to assume the defence of any claim, action, suit, proceeding or investigation brought against the Indemnified Party against such Claim. No failure by an Indemnified Party to notify the Indemnifying Party of the existence or assertion of a Claim for which indemnification may be sought shall constitute a defense to or waiver of such Claim for indemnification except to the extent the Indemnifying Party may be able to prove that it has been materially prejudiced by such failure or delay.
(b) If the Indemnifying Party disputes its liability with counsel designated respect to such Claim or the amount thereof (whether or not the Indemnifying Party desires to defend the Indemnified Party against such Claim as provided in paragraphs (c) and (d) below), such dispute shall be resolved in accordance with Section 9.5 hereof. Pending the resolution of any dispute by the Indemnifying Party of its liability with respect to any Third Party Claim, such Claim shall not be settled without the prior written consent of the Indemnified Party and the Indemnifying Party, which consent shall not be unreasonably withheld or delayed.
(c) In the event that the Indemnifying Party notifies the Indemnified Party within the Response Notice Period that it will defend the Indemnified Party against a Third Party Claim, then the Indemnifying Party shall assume the defense thereof with counsel reasonably satisfactory acceptable to the Indemnified Party, and the Indemnified Party shall cooperate in all reasonable respects in such defense, including without limitation in making any appropriate counterclaim against the person asserting the Third Party Claim or any appropriate crosscomplaint against any person (unless such counterclaim or crosscomplaint would be against any other entity with which the Indemnified Party has ongoing business relations and would have a significant likelihood in the good faith judgment of the Indemnified Party of damaging such business relationships); provided that provided, however, the Indemnifying Party will shall not, without the Indemnified Party’s prior written consent (such of the Indemnified Party which consent shall not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment against the Indemnified Party or enter into any settlement or compromise which does not include, as an unconditional term thereof, the giving by the claimant or plaintiff to the Indemnified Party of a release, in or otherwise seek form and substance reasonably satisfactory to terminate any actionthe Indemnified Party, suit, proceeding, investigation or claim from all liability in respect of which indemnification may be sought hereunder (whether or not the such Third Party Claim. If any Indemnified Party is a party thereto) unless desires to participate in, but not control, any such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence defense or settlement, it may do so at its sole cost and shall permit them to consult with expense. If, in the employees and counsel (if any) reasonable opinion of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants in , any such actionThird Party Claim or the litigation or resolution of any such Third Party Claim involves an issue or matter which could reasonably be expected to have a material adverse effect on Graphic, suit, proceeding or investigation include both provided Graphic is the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counselcontrol the defense or settlement of any such Third Party Claim at its cost and expense, the reasonable costs of which and such legal fees and expenses shall be at included as part of the indemnification obligation of the Indemnifying Party’s expense, to represent Party hereunder. If the Indemnified Party and should elect to otherwise exercise such right, the Indemnifying Party shall have the right to participate in in, but not control, the defence defense or settlement of such claimThird Party Claim at its sole cost and expense.
(d) If the Indemnifying Party elects not to defend the Indemnified Party against a Third Party Claim, actionwhether by not giving the Indemnified Party timely notice within the Response Notice Period as provided above or otherwise, suitthen the Indemnified Party shall, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification hereunder), have the right to defend, settle or compromise any such Third Party Claim with counsel of its own choosing. In the event the Indemnified Party proposes to settle a Third Party Claim, the Indemnified Party shall deliver to the Indemnifying Party written notice of the proposed settlement of the Third Party Claim, which the Indemnified Party may reject in its reasonable judgment within thirty days of receipt of such notice. In the event the Indemnified Party settles such Third Party Claim over the objection of Indemnifying Party, dispute over such settlement shall be resolved as provided in Section 9.5 hereof.
(e) In the event an Indemnified Party has a claim for indemnification against the Indemnifying Party hereunder with respect to a Claim other than a Third Party Claim, the Indemnified Party shall send a Claim Notice with respect to such Claim to the Indemnifying Party. If the Indemnifying Party disputes its liability with respect to such Claim, such dispute shall be resolved in accordance with Section 9.5 hereof. If the Indemnifying Party accepts or agrees with such Claim or does not notify the Indemnified Party within the Response Notice Period that it disputes such Claim, the amount of such Claim shall be conclusively deemed a liability of the Indemnifying Party hereunder.
(f) The use of the indemnification provisions of this Agreement by any Indemnified Party shall be the exclusive method of recovering for any Damages sustained by an Indemnified Party due to a breach of any representation, warranty or covenant contained in this Agreement; provided, however, that if such indemnification does not fully satisfy the Damages incurred by an Indemnified Party hereunder, such Indemnified Party may resort to any other legal remedy available to such party to recover any such Damages not satisfied through indemnification hereunder, subject, in each instance, to all the limitations contained in this Agreement on recovery of Damages (including, without limitation, limitations on time for asserting claims, threshold amounts, maximum recovery from an individual Indemnifying Party, credits for insurance benefits and any tax benefits or payments included in the definition of Damages in this Article 9) set forth in this Agreement. Further, if any dispute regarding indemnification hereunder is submitted to arbitration as set forth in Section 9.5 herein, the result of such arbitration shall be final, binding and conclusive, and no party may resort to other remedies to obtain recovery of any Damages not awarded through such arbitration.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Graphic Industries Inc)
Method of Asserting Claims. The party making a claim under this Article 7 is referred to as the "Indemnified Party" and the party against whom such claims are asserted under this Article 7 is referred to as the "Indemnifying Party". All claims by any Indemnified Party under this Article 7 shall be asserted and resolved as follows:
(a) If In the event that an Indemnified Party becomes aware of a claim for which an Indemnifying Party entitled would be liable to indemnification pursuant an Indemnified Party hereunder, said Indemnified Party shall with reasonable promptness notify in writing the Indemnifying Party of such claim, identifying the representation or warranty on which such claim is based, the basis for such claim or demand, and the amount or the estimated amount thereof to the terms hereof extent then determinable (which estimate shall not be conclusive of the “Indemnified Party”) intends final amount of such claim and demand; the "Claim Notice"); provided, however, that any failure to seek indemnification under this Article 4 from the other Party (the “Indemnifying Party”), give such Claim Notice will not be deemed a waiver of any rights of the Indemnified Party shall give except to the extent the rights of the Indemnifying Party notice are actually prejudiced by such failure. If the basis of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of any a claim or action demand by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or delay by an Indemnified Party to so notify the Indemnifying Party Party, upon request of the Indemnified Party, shall retain counsel (as set forth above) who shall not relieve the Indemnifying Party of its indemnification obligations hereunder be reasonably acceptable to the Indemnified Party, however the liability which the Indemnifying Party has ) to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced to the extent that any such delay in or failure to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for herein.
(b) The Indemnifying Party, at its sole cost and expense, shall have the right to assume the defence of any claim, action, suit, proceeding or investigation brought against the Indemnified Party with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such action, suit, proceeding or investigation include both represent the Indemnified Party and shall pay the reasonable fees and disbursements of such counsel with regard thereto; provided, however, that any Indemnified Party is hereby authorized prior to the date on which it receives written notice from the Indemnifying Party designating such counsel, to retain counsel, whose fees and expenses shall be at the expense of the Indemnifying Party, to file any motion, answer or other pleading and take such other action which it reasonably shall deem necessary to protect its interests or those of the Indemnifying Party until the date on which the Indemnified Party is advised by counsel that there are legal defences available to receives such notice from the Indemnified Party that are additional to those available to Indemnifying Party. After the Indemnifying Party and that in shall retain such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not takencounsel, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate its own counsel, but the reasonable costs fees and expenses of which such counsel shall be at the expense of such Indemnified Party unless (x) the Indemnifying Party’s expense, Party and the Indemnified Party shall have mutually agreed to represent the retention of such counsel or (y) the named parties of any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to otherwise participate actual or potential differing interests between them. The Indemnifying Party shall not, in connection with any proceedings or related proceedings in the defence same jurisdiction, be liable for the fees and expenses of more than one such firm for the Indemnified Party (except to the extent the Indemnified Party retained counsel to protect its (or the Indemnifying Party's) rights prior to the selection of counsel by the Indemnifying Party). If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel in contesting any claim or demand which the Indemnifying Party defends. A claim or demand may not be settled by either party without the prior written consent of the other party (which consent will not be unreasonably withheld) unless, as part of such claimsettlement, action, suit, proceeding or investigation on behalf of such the Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of Party shall receive a full and unconditional release reasonably satisfactory to the Indemnifying Party.
(b) In the event any Indemnified Party shall have a claim against any Indemnifying Party hereunder which does not involve a claim or demand being asserted against or sought to be collected from it by a third party, the Indemnified Party shall send a Claim Notice with respect to such claim to the Indemnifying Party.
(c) After delivery of a Claim Notice, so long as any right to indemnification exists pursuant to this Article 7, the affected parties each agree to retain all Books and Records related to such Claim Notice. In each instance, the Indemnified Party shall have the right to be kept fully informed by the Indemnifying Party and its legal counsel with respect to any legal proceedings. Any information or documents made available to any party hereunder and designated as confidential by the party providing such information or documents and which is not otherwise generally available to the public and not already within the knowledge of the party to whom the information is provided (unless otherwise covered by the confidentiality provisions of any other agreement among the parties hereto, or any of them), and except as may be required by applicable law, shall not be disclosed to any third Person (except for the representatives of the party being provided with the information, in which event the party being provided with the information shall request its representatives not to disclose any such information which it otherwise required hereunder to be kept confidential).
Appears in 1 contract
Sources: Stock Purchase Agreement (NMC Corp)
Method of Asserting Claims. (a) If a Party entitled to indemnification pursuant to In the terms hereof (the “Indemnified Party”) intends to seek indemnification under this Article 4 from the other Party (the “Indemnifying Party”), the Indemnified Party shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of event that any claim or action demand for which the Seller could be liable to a Purchaser Indemnitee hereunder is asserted or sought to be collected from a Purchaser Indemnitee by a third party, the Purchaser Indemnitee shall promptly following receipt of written notice notify the Seller in writing of such third party claim or action. The failure demand, specifying the nature of such claim or delay by an Indemnified Party to so notify demand and the Indemnifying Party (as set forth above) shall not relieve the Indemnifying Party of its indemnification obligations hereunder to the Indemnified Party, however the liability which the Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced amount or estimated amount thereof to the extent then feasible, which estimate shall not be conclusive of the final amount of such claim and demand (the "Claim Notice"). The Seller shall have 20 days from the date that such Claim Notice is made hereunder (the "Notice Period") to notify the Purchaser Indemnitee in writing (A) whether or not it disputes its liability to the Purchaser Indemnitee hereunder with respect to such claim or demand, and (B) notwithstanding any such delay in dispute, whether or failure to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for herein.
(b) The Indemnifying Partynot it desires, at its sole cost and expense, to defend the Purchaser Indemnitee against such claim or demand.
(a) If the Seller disputes its liability with respect to such claim or demand or the amount thereof (whether or not the Seller desires to defend the Purchaser Indemnitee against such claim or demand as provided in subsections (b) and (c) below), such dispute shall be resolved in compliance with Section 9.5. Pending the resolution of any dispute by the Seller of its liability with respect to any claim or demand, such claim or demand shall not be settled without the prior written consent of the Purchaser Indemnitee.
(b) In the event that the Seller notifies the Purchaser Indemnitee within the Notice Period that it desires to defend the Purchaser Indemnitee against such claim or demand then, except as hereinafter provided, the Seller shall have the right to assume defend the defence Purchaser Indemnitee by appropriate proceedings, which proceedings shall be promptly settled or prosecuted by it to a final conclusion in such a manner as to avoid any risk of the Purchaser Indemnitee becoming subject to liability for any claimother matter; provided, actionhowever, suit, proceeding or investigation brought against the Indemnified Party with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will Seller shall not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromiseof the Purchaser Indemnitee, consent to the entry of any judgment against the Purchaser Indemnitee or enter into any settlement or compromise which does not include, as an unconditional term thereof, the giving by the claimant or plaintiff to the Purchaser Indemnitee of a release, in form and substance satisfactory to the Purchaser Indemnitee, from all liability or otherwise seek to terminate any action, suit, proceeding, investigation or claim obligations in respect of which indemnification may be sought hereunder (whether such claim or litigation. If the Purchaser Indemnitee desires to participate in, but not the Indemnified Party is a party thereto) unless control, any such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence defense or settlement, it may do so at its sole cost and shall permit them to consult with expense through counsel of its choice. If, in the employees and counsel (if any) reasonable opinion of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants in Purchaser Indemnitee, any such actionclaim or demand or the litigation or resolution of any such claim or demand involves an issue or matter which could have a material adverse effect on the business, suitoperations, proceeding assets, properties, or investigation include both prospects of the Indemnified Party and the Indemnifying PartyPurchaser Indemnitee, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party Purchaser Indemnitee shall have the right to retain separate counselcontrol the defense or settlement of any such claim or demand and its reasonable costs and expenses shall be included as part of the indemnification obligation of the Seller hereunder; provided, however, that the Purchaser Indemnitee shall not settle any such claim or demand without the prior written consent of the Seller, which consent shall not be unreasonably delayed or withheld. If the Purchaser Indemnitee should elect to exercise such right, the reasonable costs Seller shall have the right to participate in, but not control, the defense or settlement of such claim or demand at its sole cost and expense.
(i) If the Seller elects not to defend the Purchaser Indemnitee against such claim or demand, whether by not giving the Purchaser Indemnitee timely notice as provided above or otherwise, then the amount of any such claim or demand, or, if the same may be defended by the Seller or by the Purchaser Indemnitee (but the Purchaser Indemnitee shall not have any obligation to defend any such claim or demand), then that portion thereof as to which such defense is unsuccessful, in each case shall be at conclusively deemed to be a liability of the Indemnifying Party’s expenseSeller hereunder unless the Seller has disputed its liability to the Purchaser Indemnitee as provided in subsection (a) above, in which case such dispute shall be resolved as provided in Section 9.5.
(ii) In the event that a Purchaser Indemnitee should have a claim or demand against the Seller that does not involve a claim or demand being asserted or sought to represent be collected from it by a third party, the Indemnified Party and Purchaser Indemnitee shall promptly send a Claim Notice with respect to otherwise participate such claim to the Seller. If the Seller disputes its liability with respect to such claim or demand, such dispute shall be resolved in accordance with Section 9.5; if the defence of Seller does not notify the Purchaser Indemnitee within the Notice Period that it disputes such claim, action, suit, proceeding or investigation on behalf the amount of such Indemnified Party. For further certainty, only one legal firm may claim shall be engaged at the expense conclusively deemed a liability of the Indemnifying PartySeller hereunder.
(d) All claims for indemnification by a Seller Indemnitee hereunder shall be asserted and resolved utilizing the procedures set forth above, substituting in the appropriate place "Seller Indemnitee" for "Purchaser Indemnitee" and variations thereof and "Purchaser" for "Seller."
Appears in 1 contract
Method of Asserting Claims. (a) All claims for indemnification by an Indemnified Purchaser pursuant to this Article VI shall be made in accordance with the provisions of the Escrow Agreement.
(b) If a Party third party asserts that an Indemnified Purchaser is liable to such third party for a monetary or other obligation which may constitute or result in Damages for which such Indemnified Purchaser may be entitled to indemnification pursuant to the terms hereof (the “Indemnified Party”) intends to seek indemnification under this Article 4 VI, and such Indemnified Purchaser reasonably determines that it has a valid business reason to fulfill such obligation, then (i) such Indemnified Purchaser shall be entitled to satisfy such obligation, without prior notice to or consent from the other Party Indemnification Representatives, (the “Indemnifying Party”), the ii) such Indemnified Party shall give the Indemnifying Party notice of such Purchaser may make a claim for indemnification promptly following pursuant to this Article VI in accordance with the receipt or determination by provisions of the Escrow Agreement, and (iii) such Indemnified Purchaser shall be reimbursed, in accordance with the provisions of the Escrow Agreement, for any such Damages for which it is entitled to indemnification pursuant to this Article VI (subject to the right of the Indemnification Representatives to dispute the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject Purchaser's entitlement to indemnification and, where such claim results from the commencement of any claim or action by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or delay by an Indemnified Party to so notify the Indemnifying Party (as set forth above) shall not relieve the Indemnifying Party of its indemnification obligations hereunder to the Indemnified Party, however the liability which the Indemnifying Party has to the Indemnified Party pursuant to under the terms of this Article 4 VI and Section 4(e) of the Escrow Agreement).
(and c) The Indemnified Purchaser or Indemnified Stockholder, as the case may be (each an "Indemnified Person"), shall give prompt written notification to the Indemnification Representatives or the Buyer, as the case may be, of the commencement of any action, suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be sought; provided, however, that no delay on the Indemnifying Party will be obligated to indemnify part of the Indemnified Party Person in respect of) notifying the Indemnification Representatives or the Buyer, as the case may be, shall be reduced relieve the indemnifying parties of any liability or obligation hereunder except to the extent that any such delay in or failure to give notice as herein required prejudices the defence of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the Indemnification Representatives or the Buyer, as the case may be, may, upon written notice thereof to the Indemnified Person, assume control of the defense of such action, suit, proceeding, investigation suit or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for herein.
(b) The Indemnifying Party, at its sole cost and expense, shall have the right to assume the defence of any claim, action, suit, proceeding or investigation brought against the Indemnified Party with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified PartyPerson, provided the Indemnification Representatives or the Buyer, as the case may be, acknowledge in writing to the Indemnified Person that any damages, fines, costs or other liabilities that may be assessed against the Indemnified Person in connection with such action, suit or proceeding constitute Damages for which the Indemnified Person shall be entitled to indemnification pursuant to this Article VI. If the indemnifying parties do not so assume control of such defense, the -35- 41 Indemnified Person shall control such defense. The party not controlling such defense may participate therein at its own expense; provided that if the Indemnifying Party will not, without indemnifying parties have not assumed such control and the Indemnified Party’s prior written consent (Person reasonably concludes that the indemnifying parties and the Indemnified Person have conflicting interests or different defenses available with respect to such consent not to be unreasonably withheld)action, settlesuit or proceeding, compromise, consent the reasonable fees and expenses of counsel to the entry Indemnified Person shall be considered "Damages" for purposes of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not this Agreement. The party controlling such defense shall keep the Indemnified Party is a other party thereto) unless such settlement, compromise, consent or termination includes a release advised of the Indemnified Party from all liabilities arising out status of such action, suit, proceeding, investigation suit or claim. The Indemnified Party will give to proceeding and the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, defense thereof and shall permit them to consult consider in good faith recommendations made by the other party with respect thereto. Neither the employees and counsel (if any) of indemnifying parties nor the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants in Person shall agree to any settlement of such action, suitsuit or proceeding without the prior written consent of the other parties, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which shall not be at the Indemnifying Party’s expense, to represent the Indemnified Party and to otherwise participate in the defence of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Partyunreasonably withheld.
Appears in 1 contract
Sources: Merger Agreement (Eclipsys Corp)
Method of Asserting Claims. (a) If a Party entitled to indemnification pursuant Subject to the terms hereof time periods set forth in Section 11.7 of the Healthcare Automation APA and Section 11.7 of the Advantage Reimbursement APA, the party seeking indemnity (the “Indemnified PartyIndemnitee”) intends will give prompt written notice to seek indemnification the party or parties providing indemnity (“Indemnitor”) of any Claim which it discovers or of which it receives notice and which might give rise to a Claim by it against Indemnitor under this Article 4 from Agreement, stating the other Party nature, basis and (the “Indemnifying Party”), the Indemnified Party shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of any claim or action by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or delay by an Indemnified Party to so notify the Indemnifying Party (as set forth above) shall not relieve the Indemnifying Party of its indemnification obligations hereunder to the Indemnified Party, however the liability which the Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced to the extent that known) amount thereof. Copies of any such delay papers received in or connection with a Claim shall be forwarded to Indemnitor together with the notice of the Claim. The failure to give notice as herein provided in this Section 4 shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such failure. In case of any Claim or suit by a third party or by any governmental body, or any legal administrative or arbitration proceeding with respect to which Indemnitor may have liability under this Agreement, Indemnitor shall be entitled to participate therein, and, to the extent desired by Indemnitor, to assume the defense thereof, and after notice from Indemnitor to Indemnitee of the election to so assume the defense thereof, Indemnitor will not be liable to Indemnitee for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense thereof, other than reasonable costs of investigation, unless Indemnitor does not actually assume the defense thereof following notice of such election. Indemnitee and Indemnitor will render to each other such assistance as may reasonably be required prejudices the defence of each other in order to ensure proper and adequate defense of any such action, suit, claim or proceeding, investigation or claim, or otherwise results in . Indemnitee will not make any increase in the liability which the Indemnifying Party has under its indemnity provided for herein.
(b) The Indemnifying Party, at its sole cost and expense, shall have the right to assume the defence settlement of any claim, action, suit, proceeding or investigation brought against the Indemnified Party with counsel designated by the Indemnifying Party and reasonably satisfactory Claim which might give rise to the Indemnified Party; provided that the Indemnifying Party will not, liability of an Indemnitor under this Agreement without the Indemnified Party’s prior written consent (such of Indemnitor, which consent shall not to be unreasonably withheld). If Indemnitor shall desire and be able to effect a bona fide compromise or settlement of any such suit, settle, compromise, consent claim or proceeding at its expense and such settlement includes as an unconditional term thereof the giving by the claimant or the plaintiff to the entry Indemnitee of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim a release from all liability in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceedingclaim or proceeding and does not provide any form of relief from the Indemnitee other than the payment of money damages or other money payment, investigation or claim. The Indemnified Party will give and Indemnitee shall unreasonably refuse to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant consent to such defence compromise or settlement, and shall permit them then the Indemnitor’s liability under this Agreement with respect to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such action, suit, claim or proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available shall be limited to the Indemnified Party that are additional to those available amount so offered in compromise or settlement together with all legal and other expenses which may have been incurred prior to the Indemnifying Party and that in date on which Indemnitee has refused to consent to such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking compromise or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which shall be at the Indemnifying Party’s expense, to represent the Indemnified Party and to otherwise participate in the defence of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Partysettlement.
Appears in 1 contract
Sources: Indemnification Agreement (Mediware Information Systems Inc)
Method of Asserting Claims. The party making a claim under this Article VIII is referred to as the "Indemnified Party" and the party against whom such claims are asserted under this Article VIII is referred to as the "Indemnifying Party." All claims by any Indemnified Party under this Article VIII shall be asserted and resolved as follows:
(a) If a Party entitled to indemnification pursuant to In the terms hereof (the “Indemnified Party”) intends to seek indemnification under this Article 4 from the other Party (the “Indemnifying Party”), the Indemnified Party shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of event that any claim or action demand for which an Indemnifying Party would be liable to an Indemnified Party hereunder is asserted against or sought to be collected from such Indemnified Party by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or delay by an said Indemnified Party to so shall promptly notify the Indemnifying Party (as set forth above) shall not relieve in writing the Indemnifying Party of its indemnification obligations hereunder such claim or demand, specifying the basis for such claim or demand, and the amount or the estimated amount thereof to the extent then determinable (which estimate shall not be conclusive of the final amount of such claim and demand; the "Claim ----- Notice"); provided, however, that any failure to give such Claim Notice will not be deemed a waiver of any rights of the Indemnified Party, however Party except to the liability which extent the rights of the Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the are actually prejudiced by such failure. The Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced to the extent that any such delay in or failure to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for herein.
(b) The Indemnifying Party, at its sole cost and expense, shall have the right to assume control the defence defense of any claim, action, suit, proceeding such claim or investigation brought against the Indemnified Party with demand and shall retain counsel designated by the Indemnifying Party and (who shall be reasonably satisfactory acceptable to the Indemnified Party; provided that the Indemnifying Party will not, without the Indemnified Party’s prior written consent (such consent not ) to be unreasonably withheld), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such action, suit, proceeding or investigation include both represent the Indemnified Party and shall pay the reasonable fees and disbursements of such counsel with regard thereto; provided, however, that any Indemnified Party is hereby authorized prior to the date on which it receives written notice from the Indemnifying Party designating such counsel, to retain counsel, whose reasonable fees and expenses shall be at the expense of the Indemnifying Party, to file any motion, answer or other pleading and take such other action which it reasonably shall deem necessary to protect its interests or those of the Indemnifying Party until the date on which the Indemnified Party is advised by counsel that there are legal defences available to receives such notice from the Indemnified Party that are additional to those available to Indemnifying Party. After the Indemnifying Party and that in shall retain such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not takencounsel, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate its own counsel, but the reasonable costs fees and expenses of which such counsel shall be at the Indemnifying Party’s expense, to represent the Indemnified Party and to otherwise participate in the defence of such claim, action, suit, proceeding or investigation on behalf expense of such Indemnified Party. For further certaintyThe Indemnifying Party shall not, only in connection with any proceedings or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one legal such firm for the Indemnified Party (except to the extent the Indemnified Party retained counsel to protect its (or the Indemnifying Party's) rights prior to the selection of counsel by the Indemnifying Party). If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel in contesting any claim or demand which the Indemnifying Party defends. A claim or demand may not be engaged at settled by the expense Indemnifying Party without the prior written consent of the Indemnified Party (which consent will not be unreasonably withheld) unless, as part of such settlement, the Indemnified Party shall receive a full and unconditional release reasonably satisfactory to the Indemnified Party. If the Indemnifying Party elects to defend a claim or demand, the Indemnified Party shall not pay or settle such claim or demand without the consent of the Indemnifying Party.
(b) In the event any Indemnified Party shall have a claim against any Indemnifying Party hereunder which does not involve a claim or demand being asserted against or sought to be collected from it by a third party, the Indemnified Party shall send a Claim Notice with respect to such claim to the Indemnifying Party.
(c) After delivery of a Claim Notice, so long as any right to indemnification exists pursuant to this Article VIII, the affected parties each agree to retain all books and records related to such Claim Notice. In each instance, the Indemnified Party shall have the right to be kept fully informed by the Indemnifying Party and its legal counsel with respect to any legal proceedings. Any information or documents made available to any party hereunder and designated as confidential by the party providing such information or documents and which is not otherwise generally available to the public and not already within the knowledge of the party to whom the information is provided (unless otherwise covered by the confidentiality provisions of any other agreement among the parties hereto, or any of them), and except as may be required by applicable law, shall not be disclosed to any third Person (except for the representatives of the party being provided with the information, in which event the party being provided with the information shall request its representatives not to disclose any such information which it otherwise required hereunder to be kept confidential).
Appears in 1 contract
Sources: Option Agreement (CCC Information Services Group Inc)
Method of Asserting Claims. All claims for indemnification by any Indemnified Party under this Article X shall be asserted and resolved as follows:
(a) If a Party entitled to indemnification pursuant to In the terms hereof (the “Indemnified Party”) intends to seek indemnification under this Article 4 from the other Party (the “Indemnifying Party”), the Indemnified Party shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of event that any claim or action demand for which an Indemnifying Party would be liable to an Indemnified Party hereunder is asserted against or sought to be collected from such Indemnified Party by a third party, promptly following receipt of written notice said Indemnified Party shall, within twenty (20) days of such third party claim or action. The failure of or delay by an Indemnified Party to so demand being made, notify the Indemnifying Party of such claim or demand, specifying the nature of and specific basis for such claim or demand and the amount or the estimated amount thereof to the extent then feasible (as set forth above) the “Claim Notice”). The estimate of Loss contained in the Claim Notice shall not relieve limit the amount of the Indemnifying Party of its indemnification obligations hereunder to Party’s ultimate liability under the Indemnified Party, however the liability which the claim. The Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will shall not be obligated to indemnify the Indemnified Party in with respect of) shall be reduced to the extent that any such delay in claim or failure demand if the Indemnified Party fails to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which notify the Indemnifying Party has under its indemnity provided for herein.
thereof in accordance with the provisions of this Agreement within said twenty (b20) day period. The Indemnifying Party shall have 30 days from the personal delivery or mailing of the Claim Notice (the “Notice Period”) to notify the Indemnified Party (i) whether or not the liability of the Indemnifying Party to the Indemnified Party hereunder with respect to such claim or demand is disputed, and (ii) whether or not the Indemnifying Party desires, at the sole cost and expense of the Indemnifying Party, to defend the Indemnified Party against such claim or demand; provided, however, that any Indemnified Party is hereby authorized prior to and during the Notice Period to file any motion, answer or other pleading which it shall deem necessary or appropriate to protect its interest or those of the Indemnifying Party and not unreasonably prejudicial to the Indemnifying Party. In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against such claim or demand, then, except as hereinafter provided, the Indemnifying Party shall have the right to defend by all appropriate proceedings, which proceedings shall be promptly settled or prosecuted by it to a final conclusion. If the Indemnified Party desires to participate in, but not control, any such defense or settlement it may do so at its sole cost and expense. If requested by the Indemnifying Party, shall have the right to assume the defence of any claim, action, suit, proceeding or investigation brought against the Indemnified Party agrees to cooperate with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access in contesting any claim or demand which the Indemnifying Party elects to all business records contest, or, if appropriate and other documents relevant related to such defence the claim in question, in making any counterclaim against the person asserting the third party claim or settlementdemand, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants or any cross complaint against any person but in any such action, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which shall be case at the Indemnifying Party’s expense, to represent the Indemnified Party sole cost and to otherwise participate in the defence of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Party. No claim may be settled without the consent of the Indemnifying Party, unless such settlement includes the complete release of the Indemnifying Party.
(b) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder which does not involve a claim or demand being asserted against or sought to be collected from it by a third party, the Indemnified Party shall send a Claim Notice with respect to such claim to the Indemnifying Party. If the Indemnifying Party does not notify the Indemnified Party within the Notice Period that it disputes such claim, the amount of such claim shall be conclusively deemed a liability of the Indemnifying Party hereunder. If the Indemnifying Party has disputed such claim, as provided above, such disputes shall be resolved by arbitration as provided in Section 13.11.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Surna Inc.)
Method of Asserting Claims. The party claiming indemnification hereunder (a“Indemnitee”) If will give prompt written notice (“Notice of Claim”) to the party from whom such indemnification is sought (“Indemnitor”) of any claim (“Claim”) which it discovers or of which it receives notice after the Closing and which might give rise to a Party Claim by it against the Indemnitor under Section 9 hereof, stating the nature, basis and (to the extent known or reasonably estimated) amount thereof; provided, however, that failure to give such prompt notice shall not jeopardize the right of any Indemnitee to indemnification unless such failure shall have materially prejudiced the ability of Indemnitor to defend or minimize the amount of such Claim. In the case of any Claim or suit by a third party or by any governmental body, or any legal, administrative or arbitration proceeding with respect to which Indemnitor may have liability under this Section 9, Indemnitor shall be entitled to indemnification pursuant participate therein, and to the terms hereof extent desired by it to assume the defense thereof, if Indemnitor gives written notice of its election to assume the defense thereof within sixty (60) days of its receipt of the “Indemnified Party”) intends Notice of Claim. If Indemnitor gives such notice to seek indemnification under this Article 4 from Indemnitee of the other Party (election to assume the “Indemnifying Party”)defense thereof, the Indemnified Party shall give Indemnitor will not be liable to Indemnitee for any legal or other expenses incurred by the Indemnifying Party Indemnitee in connection with the defense thereof, following the receipt of such notice provided for above, unless Indemnitor does not actually assume the defense thereof following notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of any claim or action by a third party, promptly following receipt of written notice of such third party claim or actionelection. The failure parties will render to each other such assistance as may reasonably be required of or delay by an Indemnified Party each other at Indemnitor’s expense, in order to so notify the Indemnifying Party (as set forth above) shall not relieve the Indemnifying Party of its indemnification obligations hereunder to the Indemnified Party, however the liability which the Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (insure proper and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced to the extent that any such delay in or failure to give notice as herein required prejudices the defence adequate defense of any such action, suit, Claim or proceeding. If Indemnitor actually assumes the defense of the Indemnitee, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for herein.
(b) The Indemnifying Party, at its sole cost and expense, Indemnitor shall have sole control of the right to assume defense and negotiations for the defence settlement or compromise of such Claim, Indemnitee will not make any settlement of any claim, action, suit, proceeding or investigation brought against Claim which might give rise to liability of the Indemnified Party with counsel designated by Indemnitor under the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will not, indemnity agreements contained in this Section without the Indemnified Party’s prior written consent (such of Indemnitor, and Indemnitor shall not agree to make any settlement of any Claim which would not include the unconditional release of Indemnitee without the written consent of Indemnitee, which consent shall not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment in delayed or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Partyconditioned.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such action, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which shall be at the Indemnifying Party’s expense, to represent the Indemnified Party and to otherwise participate in the defence of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Party.
Appears in 1 contract
Sources: Asset Purchase Agreement (Amcol International Corp)
Method of Asserting Claims. All claims for indemnification by any -------------------------- Indemnified Party under this Article VII shall be asserted and resolved as follows:
(a) If any claim or demand for which an Indemnifying Party would be liable to an Indemnified Party hereunder is asserted against or sought to be collected from such Indemnified Party by a Party entitled to indemnification pursuant to the terms hereof (the “Indemnified Party”) intends to seek indemnification under this Article 4 from the other Party (the “Indemnifying Party”)third party, the Indemnified Party shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of any claim or action by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or delay by an Indemnified Party to so with reasonable promptness notify the Indemnifying Party of such claim or demand, specifying the nature of and specific basis for such claim or demand and the amount or the estimated amount thereof to the extent then feasible (as set forth above) which estimate shall not relieve be conclusive of the final amount of such claim and demand) (the "Claim Notice"). The Indemnifying Party of its indemnification obligations hereunder to the Indemnified Party, however the liability which the Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will shall not be obligated to indemnify the Indemnified Party in with respect of) shall be reduced to the extent that any such delay in claim or failure demand if the Indemnified Party fails to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which notify the Indemnifying Party has under thereof in accordance with the provisions of this Agreement in reasonably sufficient time so that the Indemnifying Party's ability to defend against the claim or demand is not materially prejudiced. The Indemnifying Party shall have sixty (60) days from the delivery of the Claim Notice (the "Notice Period") in accordance with the provisions of this Agreement to notify the Indemnified Party, (i) whether or not it disputes the liability of the Indemnifying Party to the Indemnified Party hereunder with respect to such claim or demand, and (ii) notwithstanding any such dispute, whether or not it desires, at the sole cost and expense of the Indemnifying Party subject to reimbursement if finally determined not to be liable for indemnification, to defend the Indemnified Party against such claim or demand; provided, however, that any Indemnified Party is hereby authorized prior to and during the Notice Period to file any motion, answer or other pleading which it shall deem necessary or appropriate to protect its indemnity provided for hereininterests or those of the Indemnifying Party and not materially prejudicial to the Indemnifying Party.
(b) The If the Indemnifying Party disputes its liability with respect to such claim or demand or the amount thereof (if such amount is set out in the Claim Notice) (whether or not such Indemnifying Party desires to defend the Indemnified Party against such claim or demand as provided in paragraphs (c) and (d) below), such dispute shall be resolved in accordance with paragraph (f) hereof. Pending the resolution of any dispute by the Indemnifying Party of its liability with respect to any claim or demand, such claim or demand shall not be settled without the prior written consent of the Indemnifying Party.
(c) If the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against such claim or demand then, at its sole cost and expenseexcept as hereinafter provided, the Indemnifying Party shall have the right to assume the defence of any claimdefend against such claim or demand by all appropriate proceedings, actionwhich proceedings shall be promptly settled or prosecuted by it to a final conclusion; provided, suithowever, proceeding or investigation brought against the Indemnified Party with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will shall not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromiseof the Indemnified Party, consent to the entry of any judgment against the Indemnified Party or enter into any settlement or compromise which does not include, as an unconditional term thereof, the giving by the claimant or plaintiff to the Indemnified Party of a release, in or otherwise seek form and substance satisfactory to terminate any actionthe Indemnified Party, suit, proceeding, investigation or claim from all liability in respect of which indemnification may be sought hereunder (whether such claim or not litigation. If the Indemnified Party is a party thereto) unless desires to participate in, but not control, any such defense or settlement, compromiseit may do so at its sole cost and expense; provided, consent or termination includes a release however, that if in the reasonable judgment of the Indemnified Party from all liabilities arising out there may be a conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of the defense of such action, suit, proceeding, investigation or claim. The the fees and expenses of such counsel to the Indemnified Party will give shall be at the expense of the Indemnifying Party (unless the Indemnifying Party disputes its liability with respect to such claim or demand and such dispute is resolved in its favor). If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel reasonable access in contesting any claim or demand which the Indemnifying Party elects to all business records contest, or, if appropriate and other documents relevant related to such defence or settlementthe claim in question, in making any counterclaim against the person asserting the claim and shall permit them to consult with the employees and counsel (if any) of the Indemnified Partyany third party cross complaint against any person.
(c) Notwithstanding the foregoing:
(i) if If the defendants in any such action, suit, proceeding or investigation include both Indemnifying Party elects not to defend the Indemnified Party and the Indemnifying Partyagainst such claim or demand, and whether by not giving the Indemnified Party timely notice as provided above or otherwise, then the amount of any such claim or demand, or if the same be defended by the Indemnifying Party or by the Indemnified Party (but the Indemnified Party shall not have any obligation to defend any such claim or demand), then that portion thereof as to which such defense is advised by counsel that there are legal defences available unsuccessful, in each case shall be conclusively deemed to be a liability of the Indemnifying Party hereunder, unless the Indemnifying Party shall have disputed its liability to the Indemnified Party that are additional to those available to the Indemnifying Party and that hereunder, as provided in paragraph (a) above, in which event such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which dispute shall be at the Indemnifying Party’s expense, to represent the Indemnified Party and to otherwise participate resolved in the defence of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Partyaccordance with paragraph (f) hereof. For further certainty, only one legal firm No claim may be engaged at settled without the expense consent of the Indemnifying Party.
(ii) In the event an Indemnified Party should have a claim against an Indemnifying Party hereunder which does not involve a claim or demand being asserted against or sought to be collected from it by a third party, the Indemnified Party shall promptly send a Claim Notice with respect to such claim to the Indemnifying Party. If the Indemnifying Party disputes its liability with respect to such claim or demand, such dispute shall be resolved in accordance with paragraph (f) hereof. If the Indemnifying Party does not notify the Indemnified Party within the Notice Period that it disputes such claim, the amount of such claim shall be conclusively deemed a liability of the Indemnifying Party hereunder.
(e) Upon the final determination of the liability under this Article VII, payment shall be made as provided in Section 7.5 (a) or (b), as appropriate.
(f) If an Indemnifying Party timely disputes its liability with respect to a claim or demand against it for indemnification in accordance with paragraph (a) above, such dispute between the Indemnifying Party and the Indemnified Party shall be settled by arbitration in Miami, Florida in accordance with the rules of the American Arbitration Association. The arbitration shall be conducted by three arbitrators, one of whom shall be selected by the Indemnified Party, one of whom shall be selected by the Indemnifying Party and the third of whom shall be selected by the two arbitrators so chosen. The fees of the arbitrators shall be paid by the losing party, unless otherwise awarded by the arbitrators. The arbitration award shall be final, conclusive and binding on the parties and judgment thereon may be entered and enforced in any court of competent jurisdiction.
(g) Seller will be entitled, at its election, to control any cleanup, remediation or other proceeding with respect to which indemnity is sought under Section 7.1(d) for Environmental Liability, provided that Seller acts diligently in connection therewith and in accordance with all Requirements of Law.
Appears in 1 contract
Method of Asserting Claims. (a) All claims for indemnification by an Indemnified Person pursuant to this Article VI shall be made in accordance with the provisions of the Escrow Agreement.
(b) If a Party third party asserts that an Indemnified Person is liable to such third party for a monetary or other obligation which may constitute or result in Damages for which such Indemnified Person may be entitled to indemnification pursuant to the terms hereof (the “Indemnified Party”) intends to seek indemnification under this Article 4 VI, and such Indemnified Person reasonably determines that it has a valid business reason to fulfill such obligation, then (i) such Indemnified Person shall be entitled to satisfy such obligation, without prior notice to or consent from the other Party Indemnification Representative, (the “Indemnifying Party”), the ii) such Indemnified Party shall give the Indemnifying Party notice of such Person may make a claim for indemnification promptly following pursuant to this Article VI in accordance with the receipt or determination by provisions of the Escrow Agreement and (iii) such Indemnified Person shall be reimbursed, in accordance with the provisions of the Escrow Agreement, for any such Damages for which it is entitled to indemnification pursuant to this Article VI (subject to the right of the Indemnification Representative to dispute the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject Person's entitlement to indemnification and, where such claim results from the commencement of any claim or action by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or delay by an Indemnified Party to so notify the Indemnifying Party (as set forth above) shall not relieve the Indemnifying Party of its indemnification obligations hereunder to the Indemnified Party, however the liability which the Indemnifying Party has to the Indemnified Party pursuant to under the terms of this Article 4 VI).
(and c) The Indemnified Person shall give prompt written notification to the Indemnification Representative of the commencement of any action, suit or proceeding relating to a third-party claim for which indemnification pursuant to this Article VI may be sought; provided, however, that no delay on the Indemnifying Party will be obligated to indemnify part of the Indemnified Party Person in respect of) notifying the Indemnification Representative shall be reduced relieve the Holders of any liability or obligation hereunder except to the extent that any such delay in or failure to give notice as herein required prejudices the defence of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the Indemnification Representative may, upon written notice thereof to the Indemnified Person, assume control of the defense of such action, suit, proceeding, investigation suit or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for herein.
(b) The Indemnifying Party, at its sole cost and expense, shall have the right to assume the defence of any claim, action, suit, proceeding or investigation brought against the Indemnified Party with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified PartyPerson, provided the Indemnification Representative acknowledges in writing to the Indemnified Person that any damages, fines, costs or other liabilities that may be assessed against the Indemnified Person in connection with such action, suit or proceeding constitute Damages for which the Indemnified Person shall be entitled to indemnification pursuant to this Article VI. If the Indemnification Representative does not so assume control of such defense, the Indemnified Person shall control such defense. The party not controlling such defense may participate therein at its own expense; provided that if the Indemnifying Party will not, without Indemnification Representative assumes control of such defense and the Indemnified Party’s prior written consent (Person reasonably concludes that the indemnifying parties and the Indemnified Person have conflicting interests or different defenses available with respect to such consent not to be unreasonably withheld)action, settlesuit or proceeding, compromise, consent the reasonable fees and expenses of counsel to the entry Indemnified Person shall be considered "Damages" for purposes of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not this Agreement. The party controlling such defense shall keep the Indemnified Party is a other party thereto) unless such settlement, compromise, consent or termination includes a release advised of the Indemnified Party from all liabilities arising out status of such action, suit, proceeding, investigation suit or claimproceeding and the defense thereof and shall consider in good faith recommendations made by the other party with respect thereto. The Indemnified Party will give Person shall not agree to any settlement of such action, suit or proceeding without the Indemnifying Party and its counsel reasonable access prior written consent of the Indemnification Representative, which shall not be unreasonably withheld. The Indemnification Representative shall not agree to all business records and other documents relevant to any settlement of such defence action, suit or settlement, and shall permit them to consult with proceeding without the employees and counsel (if any) prior written consent of the Indemnified Party.
Person, which shall not be unreasonably withheld. Notwithstanding Section 6.2(c), the Buyer shall have the sole right to control any Tax audit, administrative or judicial proceeding, and contest, resolve and defend against any other assessment, notice of deficiency or other adjustment or proposed adjustment relating to Taxes with respect to the Company; provided, however, that the Buyer shall advise the Indemnification Representative of any notice of audit, that an adjustment is (cor has been) Notwithstanding proposed or that any other claim is or has been made by a Governmental Authority in an audit or in any administrative or judicial proceeding which could result in an indemnification obligation under Section 2.9 and that the foregoing:
Buyer shall permit the Indemnification Representative, at the Stockholders' expense, to participate in any audit process (including attending meetings and participating in material discussions with a Governmental Authority) solely as to those matters relating to the indemnification obligation under Section 2.9 and shall inform the Indemnification Representative from time to time of the status of any related administrative proceeding or judicial proceeding. The Buyer shall not settle, compromise or concede an adjustment or claim for which the Stockholders would be financially responsible as a result of a misrepresentation in Section 2.9 without the Indemnification Representative's consent, which consent shall not be unreasonably withheld. If (i) if the defendants Indemnification Representative notifies the Buyer that he desires to appeal a determination in any such actionan administrative or judicial proceeding with respect to an issue that could result in an indemnification obligation under Section 2.9, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if such appeal may be made solely with respect to such issue and (iii) the Indemnified Party shall have reasonably concluded that Stockholders agree to bear the Indemnifying Party is not taking entire expense of such appeal and to fully indemnify the Buyer and the Company for any tax or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigationother liability resulting therefrom, the Indemnified Party has provided written notice of same Buyer shall, unless it reasonably determines otherwise, consent to appeal the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which shall be at the Indemnifying Party’s expense, to represent the Indemnified Party and to otherwise participate in the defence determination of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Partyissue.
Appears in 1 contract
Method of Asserting Claims. Subject to the provisions of paragraph 13.8 of this Agreement, all claims for indemnification under this Agreement will be asserted and resolved as follows:
(a) If In the event any claim or demand, as to which Indemnitor would be liable for the Adverse Consequences asserted therein to an Indemnitee, is asserted against or sought to be collected from such Indemnitee by a Party entitled to indemnification pursuant to the terms hereof person other than Indemnitor (the “Indemnified Party”) intends to seek indemnification under this Article 4 from the other Party (the “Indemnifying Party”a "THIRD PARTY CLAIM"), the Indemnified Party Indemnitee shall give deliver a Notice of its claim (a "CLAIM NOTICE") to the Indemnifying Party notice Indemnitor within thirty (30) calendar days after the Indemnitee receives Notice of such claim for indemnification promptly following Third Party Claim; provided, however, that Notice shall be provided to the Indemnitor within fifteen (15) calendar days after receipt or determination by the Indemnified Party Indemnitee of actual knowledge a complaint, petition or information as institution of other formal legal action (the "NOTICE PERIOD"). Subject to the factual immediately succeeding sentence, the Indemnitor shall, at the sole cost and legal basis expense of any claim which is subject the Indemnitor, defend the Indemnitee against such Third Party Claim. If the Indemnitee fails to indemnification andprovide the Claim Notice within the Notice Period described above, where such claim results from the commencement of any claim or action by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or delay by an Indemnified Party to so notify the Indemnifying Party (as set forth above) shall not relieve the Indemnifying Party of its indemnification obligations hereunder to the Indemnified Party, however the liability which the Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party Indemnitor will still be obligated to indemnify the Indemnified Indemnitee with respect to such Third Party in respect of) shall be reduced Claim except to the extent the Indemnitor establishes that any the Indemnitor's ability to protect its interests was materially impaired as a result of such delay in or failure to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for hereinfailure.
(bi) The Indemnifying PartySubject to the immediately preceding sentence and subparagraph 9.3(a)(ii), the Indemnitor shall defend, at its sole cost and expense, such Third Party Claim by all appropriate proceedings, which proceedings shall be prosecuted by the Indemnitor to a final conclusion or will be settled at the discretion of the Indemnitor. To the extent the Third Party Claim is solely for money damages, the Indemnitor shall have full control of such defense and proceedings, including any compromise or settlement thereof; notwithstanding the foregoing, the Indemnitee may, at its sole cost and expense, file during the PURCHASE AND SALE AGREEMENT | -------- Initial -15-
(a) (i), and except as specifically provided in this subparagraph 10.3(a)(i), the Indemnitee will bear its own costs and expenses with respect to such participation.
(ii) Seller shall have the right to assume defend a claim and control the defence defense, settlement and prosecution of any claimlitigation where the claim or litigation arises with respect to, action, suit, proceeding or relate to an investigation brought against Indemnitee by any agency of the Indemnified federal government or the State of California with respect to Medicare, Tri-Care/CHAMPUS or Medi-Cal (collectively, "GOVERNMENT CLAIMS") for periods prior to the Closing. Either Party who becomes aware of a Government Claim against the other Party with counsel designated respect to the Facility shall, subject to applicable law, notify such other Party of such Government Claim within five (5) business days.
(iii) If the Indemnitor fails to reasonably contest or settle the Third Party Claim as required pursuant to this paragraph 10.3, the Indemnitee will have the right to defend, at the sole cost and expense of the Indemnitor, the Third Party Claim by all appropriate proceedings, which proceedings will be reasonably prosecuted by the Indemnifying Party and reasonably satisfactory Indemnitee to a final conclusion or will be settled at the reasonable discretion of the Indemnitee, subject to the Indemnified Party; provided that the Indemnifying Party will not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release provisions of the Indemnified Party from all liabilities arising out last sentence of this subparagraph. The Indemnitee will have full control of such actiondefense and proceedings; provided, suithowever, proceedingthat if requested by the Indemnitee, investigation or claim. The Indemnified Party will give the Indemnitor agrees -- at the sole cost and expense of Indemnitor -- to cooperate with the Indemnifying Party Indemnitee and its counsel in contesting any Third Party Claim which the Indemnitee is contesting or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party claim, or any cross-complaint against any person (other than the Indemnitor). Notwithstanding the foregoing provisions of this subparagraph 10.3(a)(iii), if the Indemnitor has notified the Indemnitee with reasonable access promptness that the Indemnitor disputes its liability to all business records and other documents relevant the Indemnitee with respect to such defence Third Party Claim (or settlementthe reasonableness of any settlement of the Third Party Claim), and shall permit them to consult with the employees and counsel (if any) such dispute is resolved in favor of the Indemnified Party.
(c) Notwithstanding Indemnitor, the foregoing:
(i) if Indemnitor will not be required to bear the defendants in any such actioncosts and expenses of the Indemnitee's defense and/or settlement pursuant to this paragraph 10.3(a)(iii), suit, proceeding or investigation include both of the Indemnified Party and Indemnitor's participation therein at the Indemnifying PartyIndemnitee's request, and the Indemnified Indemnitee will reimburse the Indemnitor in full for all reasonable costs and expenses incurred by the Indemnitor in connection with the dispute and the Third Party is advised by counsel that there are legal defences available Claim. Subject to the Indemnified Party that are additional to those available to above terms of this subparagraph 10.3(a)(iii), the Indemnifying Party and that in such circumstances representation Indemnitor may participate in, but not control, any defense or settlement controlled by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps Indemnitee pursuant to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Partythis subparagraph 10.3(a)(iii), and the Indemnifying Indemnitor will bear its own costs and expenses with respect to such participation. The Indemnitee shall give sufficient prior Notice to the Indemnitor of the initiation of any discussions relating to the settlement of a Third Party has not rectified Claim to allow the situation within a reasonable timeIndemnitor to participate therein; then and if Indemnitor so participates, in the Indemnified Party event of Indemnitor's disapproval of any proposed settlement or other resolution of the dispute, Indemnitor shall have the right to retain separate counseltake over the contest of the third Party claim and following the conclusion of same, utilize the dispute resolution mechanism of this Agreement to address and resolve the resulting obligations of Indemnitor and Indemnitee hereunder.
(b) In the event any Indemnitee should have a claim against any Indemnitor hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnitee, the reasonable costs Indemnitee shall deliver an Indemnity Notice (as hereinafter defined) to the Indemnitor. The term "INDEMNITY NOTICE" shall mean written notification of a claim for indemnity under paragraph 10.1 or 10.2 hereof (which shall be at claim does not involve a Third Party Claim) by an Indemnitee to an Indemnitor pursuant to this paragraph 10.3, specifying the Indemnifying Party’s expense, to represent nature of and specific basis for such claim and the Indemnified Party and to otherwise participate in amount or the defence estimated amount of such claim. The failure by any Indemnitee to promptly give the Indemnity Notice shall not impair such Party's rights hereunder except to the extent that an Indemnitor demonstrates that it has been materially prejudiced thereby, action, suit, proceeding or investigation on behalf of such Indemnified Partyin which case the Indemnitor will not be obligated to indemnify the Indemnitee with respect to the claim addressed in the Indemnity Notice. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Party.PURCHASE AND SALE AGREEMENT | -------- Initial -16-
Appears in 1 contract
Sources: Purchase and Sale Agreement (National Quality Care Inc)
Method of Asserting Claims. (a) If a Party any person entitled to indemnification pursuant to the terms Section 5.1 hereof (an "Indemnitee") is threatened in writing with any claim, or any claim is presented in writing to, or any action or proceeding is formally commenced against, any of the “Indemnified Party”) intends Indemnitees which may give rise to seek the right of indemnification under this Article 4 from the other Party (the “Indemnifying Party”)hereunder, the Indemnified Party shall Indemnitee will promptly give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of any claim or action by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or thereof to each indemnifying party; provided, however, that any delay by an Indemnified Party to Indemnitee in so notify notifying the Indemnifying Party (as set forth above) indemnifying party shall not relieve the Indemnifying Party indemnifying party of its indemnification obligations any liability to any of the Indemnitees hereunder to the Indemnified Party, however the liability which the Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced except to the extent that any the indemnifying party shall have been actually prejudiced as a result of such delay in or failure to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for hereinfailure.
(b) The Indemnifying Partyindemnifying party or parties, by delivery of written notice to an Indemnitee within 30 days of notice of claim to indemnity from an Indemnitee, may elect to assume the defense of such claim, action or proceeding at the expense of the indemnifying party; provided, however, that (i) unless such written notice shall be accompanied by a written agreement of each indemnifying party acknowledging the liability of the indemnifying parties to the Indemnitees as a result of this Agreement for any indemnified damage which any Indemnitee might incur or suffer as a result of such claim, action or proceeding or the contesting thereof, each indemnifying party shall be jointly and severally liable for the attorneys' fees and expenses of the Indemnitee, if any, incurred in connection with defending such claim; (ii) counsel undertaking such defense shall be reasonably acceptable to the Indemnitee; (iii) the indemnifying parties shall mutually elect to contest such claim, action or proceeding and shall conduct and settle such contest in a joint manner, and if the indemnifying parties shall fail at any time to agree, the Indemnitee shall have no obligation to contest such claim, action or proceeding; and (iv) if the Indemnitee requests in writing that such claim, action or proceeding not to be contested, then it shall not be contested but shall not be covered by the indemnities provided herein. The indemnifying parties may settle an indemnifiable matter after delivering a written description of the proposed settlement to and receiving consent from the Indemnitee. In the event the Indemnitee unreasonably declines to consent to such settlement, then the Indemnitee shall have no right to indemnification beyond the amount of the proposed settlement. In the event the indemnifying parties jointly elect to contest an indemnifiable matter, HSOA and SHAREHOLDER shall permit each other reasonable access to their respective books and records and shall otherwise cooperate in connection with such claim. If the indemnifying parties do not jointly elect to contest an indemnifiable matter, they shall cooperate with the Indemnitee to the extent any of them has knowledge of facts or circumstances relating to such matter, and the Indemnitee shall have the exclusive right to prosecute, defend, compromise, settle or pay any claim, but the Indemnitee shall not be obligated to do so; provided, however, that, should the Indemnitee elect not to exercise its right exclusively to prosecute, defend, compromise, settle or pay such claim, any indemnifying party may elect to do so at its sole cost and expense, shall have the right to assume the defence of any claim, action, suit, proceeding or investigation brought against the Indemnified Party with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such action, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available To secure his obligations pursuant to the Indemnified Party that are additional provisions of this Section, SHAREHOLDER agrees to those available escrow the Escrowed Cash, pursuant to the Indemnifying Party terms and that in such circumstances representation by conditions of the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which Escrow Agreement. Indemnity obligations hereunder shall be at the Indemnifying Party’s expensesatisfied, to represent the Indemnified Party and to otherwise participate in the defence case of such claimindemnification of any person entitled to indemnification under Section 5.1(a), action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at as set forth in the expense of the Indemnifying PartyEscrow Agreement.
Appears in 1 contract
Sources: Reorganization Agreement and Plan of Merger (Home Solutions of America Inc)
Method of Asserting Claims. (a) If the Buyer has incurred or suffered Damages for which it is entitled to indemnification under this Article VI, the Buyer shall, prior to the expiration of the representation, warranty, covenant or agreement to which such claim relates, give written notice of such claim (a Party "Claim Notice") to the Seller. Each Claim Notice shall state the amount of claimed Damages (the "Claimed Amount"), if known, and the basis for such claim.
(b) Within 20 days after delivery of a Claim Notice, the Seller shall provide to the Buyer a written response (the "Response Notice") in which the Seller shall: (i) agree that all of the Claimed Amount is owed to the Buyer, (ii) agree that part, but not all, of the Claimed Amount (the "Agreed Amount") is owed to the Buyer, or (iii) contest that any of the Claimed Amount is owed to the Buyer. The Seller may contest the payment of all or a portion of the Claimed Amount only based upon a good faith belief that all or such portion of the Claimed Amount does not constitute Damages for which the Buyer is entitled to indemnification under this Article VI. If no Response Notice is delivered by the Seller within such 20-day period, the Seller shall be deemed to have agreed that all of the Claimed Amount is owed to the Buyer.
(c) If the Seller in the Response Notice agrees (or is deemed to have agreed) that all of the Claimed Amount is owed to the Buyer, the Seller shall promptly pay to the Buyer an amount equal to the Claimed Amount. If the Seller in the Response Notice agrees that part, but not all, of the Claimed Amount is owed to the Buyer, the Seller shall promptly pay to the Buyer an amount equal to the Agreed Amount set forth in such Response Notice.
(d) The Buyer shall give prompt written notification to the Seller of the commencement of any action, suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be sought. Within 20 days after delivery of such notification, the Seller may, upon written notice thereof to the Buyer, assume control of the defense of such action, suit or proceeding with counsel reasonably satisfactory to the Buyer, provided the Seller acknowledges in writing to the Buyer that any damages, fines, costs or other liabilities that may be assessed against the Buyer in connection with such action, suit or proceeding constitute Damages for which the Buyer shall be entitled to indemnification pursuant to the terms hereof (the “Indemnified Party”) intends to seek indemnification under this Article 4 from VI. If the other Party Seller assumes control of such defense as provided in this paragraph (the “Indemnifying Party”d), the Indemnified Party Buyer shall give provide the Indemnifying Party notice Seller with reasonable assistance in connection therewith, including but not limited to reasonable access to documentation and personnel. If the Seller does not so assume control of such claim for indemnification promptly following defense, the receipt or determination by Buyer shall control such defense. The party not controlling such defense may participate therein at its own expense; provided that if the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of any claim or action by a third party, promptly following receipt of written notice Seller assumes control of such third party claim defense and the Buyer reasonably concludes that the Seller and the Buyer have conflicting interests or action. The failure of or delay by an Indemnified Party different defenses available with respect to so notify the Indemnifying Party (as set forth above) shall not relieve the Indemnifying Party of its indemnification obligations hereunder to the Indemnified Party, however the liability which the Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced to the extent that any such delay in or failure to give notice as herein required prejudices the defence of any such action, suit, suit or proceeding, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for herein.
(b) The Indemnifying Party, at its sole cost reasonable fees and expense, shall have the right to assume the defence expenses of any claim, action, suit, proceeding or investigation brought against the Indemnified Party with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that Buyer shall be considered "Damages" for purposes of this Agreement. The party controlling such defense shall keep the Indemnifying Party will not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a other party thereto) unless such settlement, compromise, consent or termination includes a release advised of the Indemnified Party from all liabilities arising out status of such action, suit, proceeding, investigation suit or claimproceeding and the defense thereof and shall consider in good faith recommendations made by the other party with respect thereto. The Indemnified Party will give Buyer shall not agree to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and shall permit them to consult with the employees and counsel (if any) any settlement of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such action, suitsuit or proceeding without the prior written consent of the Seller, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available which shall not be unreasonably withheld. The Seller shall not agree to the Indemnified Party that are additional to those available to the Indemnifying Party and that in any settlement of such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suitsuit or proceeding without the prior written consent of the Buyer, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which shall not be at the Indemnifying Party’s expense, to represent the Indemnified Party and to otherwise participate in the defence of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Partyunreasonably withheld.
Appears in 1 contract
Method of Asserting Claims. The party making a claim under this Article XIV is referred to as the "Indemnified Party" and the party against whom such claims are asserted under this Article XIV is referred to as the "Indemnifying Party." All claims by any Indemnified Party under this Article XIV shall be asserted and resolved as follows:
(a) If a Party entitled to indemnification pursuant to In the terms hereof (the “Indemnified Party”) intends to seek indemnification under this Article 4 from the other Party (the “Indemnifying Party”), the Indemnified Party shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of event that any claim or action demand for which an Indemnifying Party would be liable to an Indemnified Party hereunder is asserted against or sought to be collected from such Indemnified Party by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or delay by an said Indemnified Party to so shall promptly notify the Indemnifying Party (as set forth above) shall not relieve in writing the Indemnifying Party of its indemnification obligations hereunder such claim or demand, specifying the basis for such claim or demand, and the amount or the estimated amount thereof to the extent then determinable (which estimate shall not be conclusive of the final amount of such claim and demand; the "Claim Notice"); provided, however, that any failure to give such Claim Notice will not be deemed a waiver of any rights of the Indemnified Party, however Party except to the liability which extent the rights of the Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the are actually prejudiced by such failure. The Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced to the extent that any such delay in or failure to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for herein.
(b) The Indemnifying Party, at its sole cost and expense, shall have the right to assume control the defence defense of any claim, action, suit, proceeding such claim or investigation brought against the Indemnified Party with demand and shall retain counsel designated by the Indemnifying Party and (who shall be reasonably satisfactory acceptable to the Indemnified Party; provided that the Indemnifying Party will not, without the Indemnified Party’s prior written consent (such consent not ) to be unreasonably withheld), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such action, suit, proceeding or investigation include both represent the Indemnified Party and shall pay the reasonable fees and disbursements of such counsel with regard thereto; provided, however, that any Indemnified Party is hereby authorized prior to the date on which it receives written notice from the Indemnifying Party designating such counsel, to retain counsel, whose reasonable fees and expenses shall be at the expense of the Indemnifying Party, to file any motion, answer or other pleading and take such other action which it reasonably shall deem necessary to protect its interests or those of the Indemnifying Party until the date on which the Indemnified Party is advised by counsel that there are legal defences available to receives such notice from the Indemnified Party that are additional to those available to Indemnifying Party. After the Indemnifying Party and that in shall retain such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not takencounsel, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate its own counsel, but the reasonable costs fees and expenses of which such counsel shall be at the Indemnifying Party’s expense, to represent the Indemnified Party and to otherwise participate in the defence of such claim, action, suit, proceeding or investigation on behalf expense of such Indemnified Party. For further certaintyThe Indemnifying Party shall not, only in connection with any proceedings or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one legal such firm for the Indemnified Party (except to the extent the Indemnified Party retained counsel to protect its (or the Indemnifying Party's) rights prior to the selection of counsel by the Indemnifying Party). If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel in contesting any claim or demand which the Indemnifying Party defends. A claim or demand may not be engaged at settled by the expense Indemnifying Party without the prior written consent of the Indemnified Party (which consent will not be unreasonably withheld) unless, as part of such settlement, the Indemnified Party shall receive a full and unconditional release reasonably satisfactory to the Indemnified Party. If the Indemnifying Party elects to defend a claim or demand, the Indemnified Party shall not pay or settle such claim or demand without the consent of the Indemnifying Party.
(b) In the event any Indemnified Party shall have a claim against any Indemnifying Party hereunder which does not involve a claim or demand being asserted against or sought to be collected from it by a third party, the Indemnified Party shall send a Claim Notice with respect to such claim to the Indemnifying Party.
(c) After delivery of a Claim Notice, so long as any right to indemnification exists pursuant to this Article XIV, the affected parties each agree to retain all books and records related to such Claim Notice. In each instance, the Indemnified Party shall have the right to be kept fully informed by the Indemnifying Party and its legal counsel with respect to any legal proceedings. Any information or documents made available to any party hereunder and designated as confidential by the party providing such information or documents and which is not otherwise generally available to the public and not already within the knowledge of the party to whom the information is provided (unless otherwise covered by the confidentiality provisions of any other agreement among the parties hereto, or any of them), and except as may be required by applicable law, shall not be disclosed to any third Person (except for the representatives of the party being provided with the information, in which event the party being provided with the information shall request its representatives not to disclose any such information which it otherwise required hereunder to be kept confidential).
Appears in 1 contract
Sources: Option and Acquisition Agreement (CCC Information Services Group Inc)
Method of Asserting Claims. (a) If In the event that an Indemnified Party shall assert a Party entitled to indemnification pursuant to the terms hereof (the “Indemnified Party”) intends to seek indemnification claim for indemnity under this Article 4 SECTION 8, (i) the Indemnified Party will promptly after the receipt of notice of the commencement of any action, investigation, claim, demand or other proceeding by a third party against such Indemnified Party in respect of which indemnity may be sought from any Indemnifying Party under this Section 8, notify the Indemnifying Party in writing of the commencement thereof or (ii) if the claim is other Party (the “Indemnifying Party”)than such a third party claim, the Indemnified Party shall give will notify the Indemnifying Party promptly following its discovery of the facts or circumstances giving rise thereto; PROVIDED, that in either case (i) or (ii), no such notice of need be provided by the Company to an Indemnifying Party who is a Carlyle Stockholder or an ▇▇▇▇ ▇▇▇▇▇ Stockholder if the Carlyle Stockholder Deductible or ▇▇▇▇ ▇▇▇▇▇ Stockholder Deductible, as applicable, has not been exceeded and will not be exceeded by such claim for indemnification promptly following or demand and the receipt or determination by omission of the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of any claim or action by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or delay by an Indemnified Party to so notify such Indemnifying Party of any such action will not relieve such Indemnifying Party from any liability that it may have to such Indemnified Party under this SECTION 8(c) unless, and only to the extent that, such omission prejudices the ability of the Indemnifying Party (to defend such action, investigation, claim, demand, or other proceeding or to reduce or mitigate its liability under this SECTION 8, whether as set forth above) shall not relieve a result of the forfeiture of substantive rights or defenses or otherwise. In case any such action, claim, or other proceeding is brought against the Indemnified Party such Indemnified Party will notify the applicable Indemnifying Party of its indemnification obligations hereunder to the Indemnified Partycommencement thereof, however the liability which the Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will be obligated entitled to indemnify assume the defense thereof at its own expense, with counsel satisfactory to such Indemnified Party in its reasonable judgment, PROVIDED that the Deductible has been or will be exceeded; PROVIDED, FURTHER, that the Indemnified Party may, at its own expense, retain separate counsel to participate in respect of) shall be reduced to such defense. Notwithstanding the extent that foregoing, in any such delay in or failure to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation claim or claim, or otherwise results proceeding in any increase in which both the liability which the Indemnifying Party has under its indemnity provided for herein.
(b) The Indemnifying Party, at its sole cost on the one hand, and expensean Indemnified Party, on the other hand, is, or is reasonably likely to become, a party, such Indemnified Party shall have the right to assume employ separate counsel at the defence Indemnifying Party's expense and to control its own defense of any claim, such action, suitclaim or proceeding if, proceeding in the reasonable opinion of counsel to such Indemnified Party, a conflict or investigation brought against potential conflict exists between the Indemnifying Party, on the one hand, and such Indemnified Party, on the other hand, that would prevent the representation of the Indemnified Party with by counsel designated selected by and subject to the control of the Indemnifying Party under applicable law or codes of professional responsibility. Each of the Company, the ▇▇▇▇ ▇▇▇▇▇ Stockholders, and reasonably satisfactory to the Indemnified Party; provided Carlyle Stockholders agrees that the Indemnifying Party it will not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld)of the Indemnified Party, settle, compromise, or consent to the entry of any judgment in any pending or otherwise seek to terminate any threatened claim, action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder proceeding relating to the matters contemplated by this SECTION 8 (whether or not if the Indemnified Party is a party thereto or has been actually threatened to be made a party thereto) unless such settlement, compromise, or consent or termination includes a an unconditional release of the Indemnified Party from all liabilities liability arising or that may arise out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such action, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which shall be at the Indemnifying Party’s expense, to represent the Indemnified Party and to otherwise participate in the defence of such claim, action, suit, proceeding action or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Partyproceeding.
Appears in 1 contract
Sources: Recapitalization Agreement (Highwaymaster Communications Inc)
Method of Asserting Claims. (a) If a Party any person entitled to indemnification pursuant to the terms Section 5.1 hereof (an "INDEMNITEE") is threatened in writing with any claim, or any claim is presented in writing to, or any action or proceeding is formally commenced against, any of the “Indemnified Party”) intends Indemnitees which may give rise to seek the right of indemnification under this Article 4 from the other Party (the “Indemnifying Party”)hereunder, the Indemnified Party shall Indemnitee will promptly give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of any claim or action by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or thereof to each indemnifying party; provided, however, that any delay by an Indemnified Party to Indemnitee in so notify notifying the Indemnifying Party (as set forth above) indemnifying party shall not relieve the Indemnifying Party indemnifying party of its indemnification obligations any liability to any of the Indemnitees hereunder to the Indemnified Party, however the liability which the Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced except to the extent that any the indemnifying party shall have been actually prejudiced as a result of such delay in or failure to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for hereinfailure.
(b) The Indemnifying Partyindemnifying party or parties, at its sole cost and expenseby delivery of written notice to an Indemnitee within 30 days of notice of claim to indemnity from an Indemnitee, shall have the right may elect to assume the defence of any claim, action, suit, proceeding or investigation brought against the Indemnified Party with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such action, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which shall be at the Indemnifying Party’s expense, to represent the Indemnified Party and to otherwise participate in the defence defense of such claim, action, suit, action or proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Party.indemnifying party; provided, however, that (i) unless such written notice shall be accompanied by a written agreement of each indemnifying party acknowledging the liability of the indemnifying parties to the Indemnitees as a result of this Agreement for any indemnified damage which any Indemnitee might incur or suffer as a result of such claim, action or proceeding or the contesting thereof, each indemnifying party shall be jointly and severally liable for the attorneys' fees and expenses of the Indemnitee, if any, incurred in connection with defending such claim; (ii) counsel undertaking such defense shall be reasonably acceptable to the Indemnitee; (iii) the indemnifying parties shall mutually elect to contest such claim, action or proceeding and shall conduct and settle such contest in a joint manner, and if the indemnifying parties shall fail at any time to agree, the Indemnitee shall have no obligation to contest such claim, action or proceeding; and (iv) if the Indemnitee requests in writing that such claim, action or proceeding not to be contested, then it shall not be contested but shall not be covered by the indemnities provided herein. The indemnifying parties may settle an indemnifiable matter after delivering a written description of the proposed settlement to and receiving consent from the Indemnitee. In the event the Indemnitee unreasonably declines to consent to such settlement, then the Indemnitee shall have no right to indemnification beyond the amount of the proposed settlement. In the event the indemnifying parties jointly elect to contest an indemnifiable matter, USIS and Sull▇▇▇▇ ▇▇▇ll permit each other reasonable access to their respective books and records and shall otherwise cooperate in
Appears in 1 contract
Sources: Reorganization Agreement and Plan of Merger (U S Industrial Services Inc)
Method of Asserting Claims. (a) If a Party entitled to The party seeking indemnification pursuant to the terms hereof (the “Indemnified PartyIndemnitee”) intends will give prompt written notice to seek indemnification under this Article 4 from the other Party party or parties (the “Indemnifying PartyIndemnitor”), the Indemnified Party shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis ) of any claim which is subject to indemnification andClaim, where such claim results from whether solely between the commencement of any claim parties or action brought by a third party, promptly following which it discovers or of which it receives notice after the Closing and which might give rise to a claim by it against Indemnitor under Section 8 hereof, stating the nature, basis and (to the extent known) amount thereof; provided that failure to give prompt notice shall not jeopardize the right of any Indemnitee to indemnification except to the extent such failure shall have materially prejudiced the ability of the Indemnitor to defend such Claim. Subject to the Indemnitor’s right to defend in good faith third party claims as hereinafter provided, the Indemnitor shall satisfy its obligations and this Article 8 within thirty (30) days after receipt of written notice thereof from the Indemnitee.
(b) In case of any Claim or suit by a third party or by any governmental body, or any legal, administrative or arbitration proceeding with respect to which Indemnitor may have liability under the indemnity agreement contained in this Section 8, Indemnitor shall be entitled to participate therein, and, to the extent desired by it, to assume the defense thereof, and after notice from Indemnitor to Indemnitee of the election so to assume the defense thereof, Indemnitor will not be liable to Indemnitee for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense thereof, other than reasonable costs of investigation, unless Indemnitor does not actually assume the defense thereof following notice of such election. Indemnitee and Indemnitor will render to each other such assistance as may reasonably be required of each other in order to insure proper and adequate defense of any such suit, Claim or proceeding. If the Indemnitor actually assumes the defense of the Indemnitee, the Indemnitee will not make any settlement of any Claim which might give rise to liability of Indemnitor under the indemnity agreements contained in this Section without the written consent of Indemnitor, which consent shall not be unreasonably withheld, delayed or conditioned, and the Indemnitor shall not agree to make any settlement of any Claim which would not include the unconditional release of the Indemnitee without the written consent of Indemnitee, which consent shall not be unreasonably withheld, delayed or conditioned.
(c) If the Indemnitee shall notify the Indemnitor of any claim or demand pursuant to Section 8.4(a), and if such claim or demand relates to a claim or demand asserted by a third party against the Indemnitee which the Indemnitor acknowledges is a claim or demand for which it must indemnify or hold harmless the Indemnitee under Sections 8.1, 8.2 or 8.3, the Indemnitor shall have the right to employ counsel acceptable to the Indemnitee to defend any such claim or demand asserted against the Indemnitee. The Indemnitee shall have the right to participate in the defense of any such claim or demand. The Indemnitor shall notify the Indemnitee in writing, as promptly as possible (but in any case before the due date for the answer or response to a claim) after the date of the notice of claim given by the Indemnitee to the Indemnitor under Section 8.4(a) of its election to defend in good faith any such third party claim or actiondemand. So long as the Indemnitor is defending in good faith any such claim or demand asserted by a third party against the Indemnitee, the Indemnitee shall not settle or compromise such claim or demand. The failure of or delay by an Indemnified Party to so notify the Indemnifying Party (as set forth above) Indemnitee shall not relieve the Indemnifying Party of its indemnification obligations hereunder make available to the Indemnified Party, however the liability which the Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (Indemnitor or its agents all records and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced to the extent that any such delay in or failure to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase other materials in the liability which the Indemnifying Party has under its indemnity provided for herein.
(b) The Indemnifying Party, at its sole cost and expense, shall have the right to assume the defence of any claim, action, suit, proceeding or investigation brought against the Indemnified Party with counsel designated Indemnitee’s possession reasonably required by the Indemnifying Party and reasonably satisfactory to Indemnitor for the Indemnified Party; provided that the Indemnifying Party will not, without the Indemnified PartyIndemnitor’s prior written consent (such consent not to be unreasonably withheld), settle, compromise, consent to the entry of use in contesting any judgment in third party claim or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether demand. Whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give Indemnitor elects to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants in defend any such actionclaim or demand, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party Indemnitee shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps no obligations to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which shall be at the Indemnifying Party’s expense, to represent the Indemnified Party and to otherwise participate in the defence of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Partydo so.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Optio Software Inc)
Method of Asserting Claims. The party seeking indemnity hereunder (a"Indemnitee") If a Party entitled to indemnification pursuant will give prompt written notice to the terms hereof party providing indemnity (the “Indemnified Party”"Indemnitor") intends to seek indemnification under this Article 4 from the other Party (the “Indemnifying Party”), the Indemnified Party shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject it discovers or of which it receives notices after the date hereof and which might give rise to indemnification anda claim by it against Indemnitor under this Agreement, where such claim results from stating the commencement nature, basis and (to the extent known) amount thereof. In case of any claim or action suit by a third partyparty or by any governmental body, promptly or any legal, administrative or arbitration proceeding with respect to which Indemnitor may have liability under the indemnity agreements contained in this Agreement, Indemnitor shall be entitled to participate therein, and, to the extent desired by it or them, to assume the defense thereof, and after notice from Indemnitor to Indemnitee of the election so to assume the defense thereof, Indemnitor will not be liable to Indemnitee for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense thereof, other than reasonable costs of investigation, unless Indemnitor does not actually assume the defense thereof following receipt of written notice of such third party claim or actionelection. The failure Indemnitee and Indemnitor will render to each other such assistance as may reasonably be required of or delay by an Indemnified Party each other in order to so notify the Indemnifying Party (as set forth above) shall not relieve the Indemnifying Party of its indemnification obligations hereunder to the Indemnified Party, however the liability which the Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (ensure proper and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced to the extent that any such delay in or failure to give notice as herein required prejudices the defence adequate defense of any such action, suit, proceeding, investigation claim or claim, or otherwise results in proceedings. Indemnitee will not make any increase in the liability which the Indemnifying Party has under its indemnity provided for herein.
(b) The Indemnifying Party, at its sole cost and expense, shall have the right to assume the defence settlement of any claim, action, suit, proceeding or investigation brought against claim which might give rise to liability of an Indemnitor under the Indemnified Party with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will not, indemnity agreements contained in this Agreement without the Indemnified Party’s prior written consent (such of Indemnitor, which consent shall not to be unreasonably withheld), settleunless Indemnitor in the good faith exercise of its discretion, compromisedeems itself insecure with respect to Indemnitor's ability to pay the claim. If Indemnitor shall desire and be able to effect a bona fide compromise or settlement of any such suit, claim or proceedings and Indemnitee shall unreasonably refuse to consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence compromise or settlement, and shall permit them then the Indemnitor's liability with respect to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such action, suit, claim or proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available shall be limited to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which shall be at the Indemnifying Party’s expense, to represent the Indemnified Party and to otherwise participate in the defence of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Party.amount so offered in
Appears in 1 contract
Sources: Customer Account Transfer Agreement (National Securities Corp/Wa/)
Method of Asserting Claims. The party making a claim under this Article VII is referred to as the "Indemnified Party" and the party against whom such claims are asserted under this Article VII is referred to as the "Indemnifying Party." all claims by any Indemnified Party under this Article VII shall be asserted and resolved as follows:
(a) If a Party entitled to indemnification pursuant to In the terms hereof (the “Indemnified Party”) intends to seek indemnification under this Article 4 from the other Party (the “Indemnifying Party”), the Indemnified Party shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of event that any claim or action demand for which an Indemnifying Party would be liable to an Indemnified Party hereunder is asserted against or sought to be collected from such Indemnified Party by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or delay by an said Indemnified Party to so shall with reasonable promptness notify the Indemnifying Party (as set forth above) shall not relieve in writing the Indemnifying Party of its indemnification obligations hereunder such claim or demand, specifying the basis for such claim or demand, and the amount or the estimated amount thereof to the extent then determinable (which estimate shall not be conclusive of the final amount of such claim and demand; the "Claim Notice"); provided, however, that any failure to give such Claim Notice will not be deemed a waiver of any rights of the Indemnified Party except to the extent the rights of the Indemnifying Party are actually prejudiced by such failure. The Indemnifying Party, upon request of the Indemnified Party, shall retain counsel (who shall be reasonably acceptable to the Indemnified Party, however the liability which the Indemnifying Party has ) to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced to the extent that any such delay in or failure to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for herein.
(b) The Indemnifying Party, at its sole cost and expense, shall have the right to assume the defence of any claim, action, suit, proceeding or investigation brought against the Indemnified Party with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such action, suit, proceeding or investigation include both represent the Indemnified Party and shall pay the reasonable fees and disbursements of such counsel with regard thereto' provided, however, that any Indemnified Party is hereby authorized prior to the date on which it receives written notice from the Indemnifying Party designating such counsel, to retain counsel, whose fees and expenses shall be at the expense of the Indemnifying Party, to file any motion, answer or other pleading and take such other action which it reasonably shall deem necessary to protect its interests or those of the Indemnifying Party until the date on which the Indemnified Party is advised by counsel that there are legal defences available to receives such notice from the Indemnified Party that are additional to those available to Indemnifying Party. After the Indemnifying Party and that in shall retain such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not takencounsel, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate its own counsel, but the reasonable costs fees and expenses of which such counsel shall be at the expense of such Indemnified Party unless (x) the Indemnifying Party’s expense, Party and the Indemnified Party shall have mutually agreed to represent the retention of such counsel or (y) the named parties of any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to otherwise participate actual or potential differing interests between them. The Indemnifying Party shall not, in connection with any proceedings or related proceedings in the defence same jurisdiction, be liable for the fees and expenses of more than one such claim, action, suit, proceeding firm for the Indemnified Party (except to the extent the Indemnified Party retained counsel to protect its (or investigation on behalf the Indemnifying Party's) rights prior to the selection of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of counsel by the Indemnifying Party.) If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel in contesting any claim or demand which the Indemnifying Party defends. A claim or demand may not be settled by the Indemnifying Party without the prior written consent of the Indemnified Party (which consent will not be unreasonably withheld) unless, as part of such settlement, the Indemnified Party shall receive a full and unconditional release reasonably satisfactory to the Indemnified Party.
(b) In the event any Indemnified Party shall have a claim against any Indemnifying Party hereunder which does not involve a claim or demand being asserted against or sought to be collected from it by a third party, the Indemnified Party shall send a Claim Notice with respect to such claim to the Indemnifying Party.
(c) After delivery of a Claim Notice, so long as any right to indemnification exists pursuant to this Article VII, the affected parties each agree to retain all Books and Records related to such Claim Notice. In each instance, the Indemnified Party shall have the right to be kept fully informed by the Indemnifying Party and its legal counsel with respect to any legal proceedings. Any information or documents made available to any 30 party hereunder and designated as confidential by the party providing such information or documents and which is not otherwise generally available to the public and not already within the knowledge of the party to whom the information is provided (unless otherwise covered by the confidentiality provision of any other agreement among the parties hereto, or any of them), and except as may be required by applicable law, shall not be disclosed to any third Person (except for the representatives of the party being provided with information, in which event the party being provided with the information shall request its representatives not to disclose any such information which is otherwise required hereunder to be kept confidential).
Appears in 1 contract
Method of Asserting Claims. Subject to the time period set forth in Section 11.4 hereof with respect to survival of representations and warranties, the party seeking indemnity (a“Indemnitee”) If will give prompt written notice to the party providing indemnity (“Indemnitor”) of any Claim which it discovers or of which it receives notice after the Closing and which might give rise to a Party Claim by it against the Indemnitor under Article 11 hereof, stating the nature, basis and (to the extent known) amount thereof. In case of any Claim or suit by a third party or by any governmental body, or any legal, administrative or arbitration proceeding with respect to which the Indemnitor may have liability under the indemnity agreement contained in this Article 11, the Indemnitor shall be entitled to indemnification pursuant participate therein, and, to the terms hereof (extent desired by it or them, to assume the “Indemnified Party”) intends to seek indemnification under this Article 4 defence thereof, and after notice from the other Party (Indemnitor to Indemnitee of the “Indemnifying Party”)election so to assume the defence thereof, the Indemnified Party shall give Indemnitor will not be liable to Indemnitee for any legal or other expenses subsequently incurred by Indemnitee in connection with the Indemnifying Party defence thereof, other than reasonable costs of investigation, unless the Indemnitor does not actually assume the defence thereof following notice of such claim for indemnification promptly following election. Indemnitee and the receipt or determination by the Indemnified Party Indemnitor will render to each other such assistance as may reasonably be required of actual knowledge or information as each other in order to the factual insure proper and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of any claim or action by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or delay by an Indemnified Party to so notify the Indemnifying Party (as set forth above) shall not relieve the Indemnifying Party of its indemnification obligations hereunder to the Indemnified Party, however the liability which the Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced to the extent that any such delay in or failure to give notice as herein required prejudices the adequate defence of any such action, suit, Claim or proceeding, investigation or claim, or otherwise results in . Indemnitee will not make any increase in the liability which the Indemnifying Party has under its indemnity provided for herein.
(b) The Indemnifying Party, at its sole cost and expense, shall have the right to assume the defence settlement of any claim, action, suit, proceeding or investigation brought against Claim which might give rise to liability of an Indemnitor under the Indemnified Party with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will not, indemnity agreements contained in this Section without the Indemnified Party’s prior written consent (such of the Indemnitor, which consent shall not to be unreasonably withheld), settleunless Indemnitee in the good faith exercise of its discretion, compromisedeems itself insecure with respect to Indemnitor’s ability to pay the Claim. If the Indemnitor shall desire and be able to effect a bona fide compromise or settlement of any such suit, Claim, or proceeding and Indemnitee shall unreasonably refuse to consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence compromise or settlement, and shall permit them then the Indemnitor’s liability under this Article 11 with respect to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such action, suit, Claim or proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available shall be limited to the Indemnified Party that are additional to those available amount so offered in compromise or settlement together with all legal and other expenses which may have been incurred prior to the Indemnifying Party and that in date on which the Indemnitee has refused to consent to such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking compromise or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which shall be at the Indemnifying Party’s expense, to represent the Indemnified Party and to otherwise participate in the defence of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Partysettlement.
Appears in 1 contract
Sources: Share Purchase Agreement (Cynapsus Therapeutics Inc.)
Method of Asserting Claims. The party seeking indemnification (athe "Indemnitee") If will give prompt written notice to the other party or parties (the "Indemnitor") of any Claim which it discovers or of which it receives notice after the Closing and which might give rise to a Party claim by it against Indemnitor under Section 9 hereof, stating the nature, basis and (to the extent known) amount thereof; provided that failure to give prompt notice shall not jeopardize the right of any Indemnitee to indemnification unless such failure shall have materially prejudiced the ability of the Indemnitor to defend such Claim. In case of any Claim or suit by a third party or by any governmental body, or any legal, administrative or arbitration proceeding with respect to which Indemnitor may have liability under the indemnity agreement contained in this Section 9, Indemnitor shall be entitled to indemnification pursuant participate therein, and, to the terms hereof (extent desired by it, to assume the “Indemnified Party”) intends defense thereof, and after notice from Indemnitor to seek indemnification under this Article 4 from Indemnitee of the election so to assume the defense thereof, Indemnitor will not be liable to Indemnitee for any legal or other Party (expenses subsequently incurred by Indemnitee in connection with the “Indemnifying Party”)defense thereof, other than reasonable costs of investigation, unless Indemnitor does not actually assume the Indemnified Party shall give the Indemnifying Party defense thereof following notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party election. Indemnitee and Indemnitor will render to each other such assistance as may reasonably be required of actual knowledge or information as each other in order to the factual insure proper and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of any claim or action by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or delay by an Indemnified Party to so notify the Indemnifying Party (as set forth above) shall not relieve the Indemnifying Party of its indemnification obligations hereunder to the Indemnified Party, however the liability which the Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced to the extent that any such delay in or failure to give notice as herein required prejudices the defence adequate defense of any such action, suit, Claim or proceeding. If the Indemnitor actually assumes the defense of the Indemnitee, investigation or claim, or otherwise results in the Indemnitee will not make any increase in the liability which the Indemnifying Party has under its indemnity provided for herein.
(b) The Indemnifying Party, at its sole cost and expense, shall have the right to assume the defence settlement of any claim, action, suit, proceeding or investigation brought against Claim which might give rise to liability of Indemnitor under the Indemnified Party with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will not, indemnity agreements contained in this Section without the Indemnified Party’s prior written consent (such of Indemnitor, which consent shall not to be unreasonably withheld), settle, compromise, consent and the Indemnitor shall not agree to the entry make any settlement of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of Claim which indemnification may be sought hereunder (whether or would not include the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a unconditional release of the Indemnified Party from all liabilities arising out Indemnitee without the written consent of such actionIndemnitee, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and which consent shall permit them to consult with the employees and counsel (if any) of the Indemnified Partynot be unreasonably withheld.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such action, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which shall be at the Indemnifying Party’s expense, to represent the Indemnified Party and to otherwise participate in the defence of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Party.
Appears in 1 contract
Method of Asserting Claims. (a) If a Party an Indemnified Person has incurred or suffered Damages for which it is entitled to indemnification pursuant to the terms hereof (the “Indemnified Party”) intends to seek indemnification under this Article 4 from VII, such Indemnified Person shall, prior to the other expiration of the representation, warranty, covenant or agreement to which such claim relates, give written notice of such claim (a “Claim Notice”) to the Party or Parties responsible for indemnification with respect thereto (collectively, the “Indemnifying Party”). Each Claim Notice shall state the amount of claimed Damages (the “Claimed Amount”), if known, and the Indemnified Party shall give basis for such claim.
(b) Within 20 days after delivery of a Claim Notice, the Indemnifying Party notice shall provide to the Indemnified Person a written response (the “Response Notice”) in which the indemnifying Party shall: (i) agree that all of the Claimed Amount is owed to the Indemnified Person, (ii) agree that part, but not all, of the Claimed Amount (the “Agreed Amount”) is owed to the Indemnified Person, or (iii) contest that any of the Claimed Amount is owed to the Indemnified Person. The Indemnifying Party may contest the payment of all or a portion of the Claimed Amount only based upon a good faith belief that all or such claim portion of the Claimed Amount does not constitute Damages for which the Indemnified Person is entitled to indemnification under this Article VII. If no Response Notice is delivered by the Indemnifying Party within such 20-day period, the Indemnifying Party shall be deemed to have agreed that all of the Claimed Amount is owed to the Indemnified Person.
(c) If the Indemnifying Party in the Response Notice agree (or is deemed to have agreed) that all of the Claimed Amount is owed to the Indemnified Person, the Indemnifying Party shall promptly following pay to the receipt or determination Indemnified Person an amount equal to the Claimed Amount. If the Indemnifying Party in the Response Notice agrees that part, but not all, of the Claimed Amount is owed to the Indemnified Person, the Indemnifying Party shall promptly pay to the Indemnified Person an amount equal to the Agreed Amount set forth in such Response Notice. Acceptance by the Indemnified Person of part payment of any Claimed Amount shall be without prejudice to that Indemnified Person’s right to claim the balance of any such Claimed Amount. If the Indemnifying Party in the Response Notice contests all or part of the Claimed Amount (the “Contested Amount”), the Indemnifying Party and the Indemnified Person shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations, either may commence a lawsuit or other appropriate proceeding in a court of competent jurisdiction.
(d) The Indemnified Person shall give prompt written notification to the Indemnifying Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of any claim action, suit or action by proceeding relating to a third party, promptly following receipt of written notice of such third party claim or action. The failure for which indemnification pursuant to this Article VII may be sought; provided, however, that no delay on the part of or delay by an the Indemnified Party to so notify Person in notifying the Indemnifying Party (as set forth above) shall not relieve the Indemnifying Party of its indemnification obligations any liability for Damages hereunder except to the extent of any Damage or material prejudice caused by or arising out of such delay. Within 20 days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified PartyPerson, however assume control of the liability which defense of such action, suit or proceeding with counsel reasonably satisfactory to the Indemnified Person, provided (i) the Indemnifying Party has acknowledges in writing to the Indemnified Party Person that any damages, fines, costs or other liabilities that may be assessed against the Indemnified Person in connection with such action, suit or proceeding constitute Damages for which the Indemnified Person shall be entitled to indemnification pursuant to this Article VII, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party’s claim would not have a material adverse effect on the goodwill or the reputation of the Indemnified Person or the business, operations or future conduct of the Indemnified Person. If the Indemnifying Party does not so assume control of such defense, the Indemnified Person shall control such defense. The party not controlling such defense may participate therein at its own expense; provided that if the Indemnifying Party assumes control of such defense and the Indemnified Person reasonably concludes that the Indemnifying Party and the Indemnified Person have conflicting interests or different defenses available with respect to such action, suit or proceeding, the reasonable fees and expenses of counsel to the Indemnified Person shall be considered “Damages” for purposes of this Agreement. The party controlling such defense shall keep the other party advised of the status of such action, suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the other party with respect thereto. Except as provided in Section 7.3(e) below, the Indemnified Person shall not agree to any settlement of such action, suit or proceeding without the prior written consent of the Indemnifying Party, which shall not be unreasonably withheld, conditioned or delayed. The Indemnifying Party shall not agree to any settlement of or the entry of a judgment in any action, suit or proceeding without the prior written consent of the Indemnified Person, which shall not be unreasonably withheld, conditioned or delayed (it being understood that it is reasonable to withhold, condition or delay such consent if, among other things, the settlement or the entry of a judgment (A) lacks a complete release of the Indemnified Person for all liability with respect thereto or (B) imposes any liability or obligation on the Indemnified Person).
(e) If a third party asserts that an Indemnified Person is liable to such third party for a monetary or other obligation which may constitute or result in Damages for which such Indemnified Person may be entitled to indemnification pursuant to this Article VII, and such Indemnified Person reasonably determines that it has a valid business reason to fulfill such obligation, then (i) such Indemnified Person shall be entitled to satisfy such obligation, without prior notice to or consent from the Indemnifying Party, (ii) such Indemnified Person may make a claim for indemnification pursuant to this Article VII, and (iii) such Indemnified Person shall be reimbursed for any such Damages for which it is entitled to indemnification pursuant to this Article VII (subject to the right of the Indemnifying Party to dispute the Indemnified Person’s entitlement to indemnification under the terms of this Article 4 (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced to the extent that any such delay in or failure to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for hereinVII).
(b) The Indemnifying Party, at its sole cost and expense, shall have the right to assume the defence of any claim, action, suit, proceeding or investigation brought against the Indemnified Party with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such action, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which shall be at the Indemnifying Party’s expense, to represent the Indemnified Party and to otherwise participate in the defence of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Party.
Appears in 1 contract
Sources: Asset Purchase Agreement (American Defense Systems Inc)
Method of Asserting Claims. All claims for indemnification by any Indemnified Party under this ARTICLE XI shall be asserted and resolved as follows:
(a) If a an Indemnified Party entitled to indemnification pursuant to the terms hereof (the “Indemnified Party”) intends to seek indemnification under this Article 4 from ARTICLE XI for any indemnifiable matter, it shall promptly notify the Indemnifying Party in writing of such claim (which notice shall describe the basis and amount of such claim and the provisions of this Agreement giving rise to same, and shall include copies of any documents or records in the possession or under the control of the Indemnified Party relating thereto). Any claims under this Agreement must be asserted by written notice within the applicable Time Limitation, and if such notice is given asserting a claim for recovery under this ARTICLE XI, then the claim asserted in such notice shall survive until such time as such claim is fully and finally resolved.
(b) In the event that the Seller Indemnifying Parties dispute any claim for indemnification by the Purchaser Indemnified Parties under SECTION 11.2(c) or the Purchaser Indemnifying Parties dispute any claim for indemnification under SECTION 11.3(b) by the Seller Indemnified Parties, the Seller Indemnifying Parties may dispute the amount of the Negative Adjustment Amount or the Purchaser Indemnifying Parties may dispute the amount of the Positive Adjustment Amount, as applicable, by delivering a written notice (a “Dispute Notice”) within fifteen (15) days after receipt by the Indemnifying Parties of such claim by the Indemnified Parties, specifying the basis for such objection, and the parties will attempt to resolve and finally determine and agree upon the disputed items as promptly as practicable. If the parties fail to resolve items under dispute within fifteen (15) days after delivery of the Dispute Notice, then the parties shall submit the items in dispute to the Accounting Firm. The Accounting Firm will make a determination of the Actual Closing Working Capital and the Negative Adjustment Amount or Positive Adjustment Amount, as applicable. The Accounting Firm shall address only those items in dispute and may not determine a Negative Adjustment Amount or Positive Adjustment Amount greater than the greatest amount claimed by either party or smaller than the smallest amount claimed by the parties. The determination of the Accounting Firm will be made within sixty (60) days after submission of the items in dispute and such determination shall constitute an arbitral award that is final, binding and non-appealable and upon which a judgment may be entered by a court having jurisdiction thereover. The fees, costs and expenses of the Accounting Firm will be borne pro rata as between the Indemnifying Parties, on the one hand, and the Indemnified Parties, on the other hand, in proportion to the final allocation made by such Accounting Firm of the disputed items in relation to the claims made by the Indemnified Parties and Indemnifying Parties, such that the prevailing party pays the lesser proportion of such fees, costs and expenses.
(c) In the event an Indemnified Party becomes aware of a third party claim (a “Third Party Claim”) which the “Indemnifying Party”)Indemnified Party reasonably believes may result in a demand for indemnification pursuant to this ARTICLE XI, the Indemnified Party shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of any claim or action by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or delay by an Indemnified Party to so notify the Indemnifying Party (as set forth above) of such claim. The Indemnifying Party shall be entitled, at its expense, to participate in and make recommendations with respect to, but not relieve to determine or conduct, the defense of such Third Party Claim; provided, however, that the Indemnifying Party agrees and consents, as a condition of its indemnification obligations hereunder to such entitlement of participation, that the Indemnified Party, however ’s legal counsel in the liability which the Indemnifying Third Party has to Claim shall not be precluded from representing the Indemnified Party pursuant as against the Indemnifying Parties in the event that an Indemnifying Party disputes whether it has any obligation to provide indemnification or the amount of the Indemnified Party’s Losses related to the terms of this Article 4 (and for which the Indemnifying Third-Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced to the extent that any such delay in or failure to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for herein.
(b) The Indemnifying Party, at its sole cost and expense, Claim. Purchaser shall have the right in its sole discretion to assume conduct the defence defense of, and to settle, any such claim, provided, however, that except with the written consent of TGI (which consent shall not be unreasonably withheld, delayed or conditioned), no settlement of any claim, action, suit, proceeding or investigation brought against such Third Party Claim with third party claimants shall be determinative of either the Indemnified Party with counsel designated by existence of the obligation of the Indemnifying Party and reasonably satisfactory to provide indemnification or the Indemnified Party; provided that the Indemnifying Party will not, without amount of the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromise, consent Losses relating to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not Third Party Claim. In the event that the Indemnified Party is a party thereto) unless such settlement, compromise, settles any Third Party Claim without the written consent or termination includes a release of the Indemnified Party from all liabilities arising out of such actionIndemnifying Party, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party may dispute both the existence of the Indemnifying Party’s obligation to provide indemnification and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and shall permit them to consult with the employees and counsel (if any) amount of the Indemnified Party.
(c) Notwithstanding ’s Losses arising from the foregoing:
(i) if Third Party Claim. In the defendants in any such action, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel event that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same consented in writing to the Indemnifying Partyany such settlement, and the Indemnifying Party has not rectified shall have no power or authority to either dispute the situation within a reasonable time; then existence of the obligation to provide indemnification or dispute the amount of the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which shall be at the Indemnifying Party’s expense, to represent Losses arising from the Indemnified Third Party and to otherwise participate in the defence of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying PartyClaim.
Appears in 1 contract
Sources: Asset Purchase Agreement (Nuance Communications, Inc.)
Method of Asserting Claims. (a) If In the event that any Buyer Indemnified Party is made a Party entitled defendant in or party to indemnification pursuant any action or proceeding, judicial or administrative, instituted by any third party for the Liability or the costs or expenses of which are Losses (any such third party action or proceeding being referred to the terms hereof (the “Indemnified Party”) intends to seek indemnification under this Article 4 from the other Party (the “Indemnifying Party”as a "Claim"), the such Buyer Indemnified Party shall give the Indemnifying Seller prompt notice thereof. The failure to give such notice shall not affect any Buyer Indemnified Party's ability to seek reimbursement unless such failure has materially and adversely affected the Seller's ability to defend successfully a Claim. The Seller shall be entitled to contest and defend such Claim; provided, that the Seller (i) has a reasonable basis for concluding that such defense may be successful and (ii) diligently contests and defends such Claim. Notice of the intention so to contest and defend shall be given by the Seller to the Buyer Indemnified Party within 20 business days after the Seller's notice of such claim for indemnification promptly following Claim (but, in all events, at least five business days prior to the receipt or determination date that an answer to such Claim is due to be filed). Such contest and defense shall be conducted by reputable attorneys employed by the Seller. The Buyer Indemnified Party of actual knowledge or information as to shall be entitled at any time, at its own cost and expense (which expense shall not constitute a Loss unless the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of any claim or action by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or delay by an Buyer Indemnified Party to so notify reasonably determines that the Indemnifying Party (as set forth above) shall Seller is not relieve adequately representing or, because of a conflict of interest, may not adequately represent, any interests of the Indemnifying Party of its indemnification obligations hereunder to the Buyer Indemnified PartyParties, however the liability which the Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced only to the extent that such expenses are reasonable), to participate in such contest and defense and to be represented by attorneys of its or their own choosing. If the Buyer Indemnified Party elects to participate in such defense, the Buyer Indemnified Party will cooperate with the Seller in the conduct of such defense. Neither the Buyer Indemnified Party nor the Seller may concede, settle or compromise any such delay in Claim without the consent of the other Party, which consents will not be unreasonably withheld. Notwithstanding the foregoing, (i) if a Claim seeks equitable relief or failure (ii) if the subject matter of a Claim relates to give notice as herein required prejudices the defence ongoing business of any of the Buyer Indemnified Parties, which Claim, if decided against any of the Buyer Indemnified Parties, would materially adversely affect the ongoing business or reputation of any of the Buyer Indemnified Parties, then, in each such actioncase, suitthe Buyer Indemnified Parties alone shall be entitled to contest, proceeding, investigation or claim, or otherwise results in any increase defend and settle such Claim in the liability which first instance and, if the Indemnifying Party has under its indemnity provided for hereinBuyer Indemnified Parties do not contest, defend or settle such Claim, the Seller shall then have the right to contest and defend (but not settle) such Claim.
(b) The Indemnifying In the event any Buyer Indemnified Party should have a claim against the Seller that does not involve a Claim, the Buyer Indemnified Party shall deliver a notice of such claim with reasonable promptness to the Seller. If the Seller notifies the Buyer Indemnified Party that it does not dispute the claim described in such notice or fails to notify the Buyer Indemnified Party within 30 days after delivery of such notice by the Buyer Indemnified Party whether the Seller disputes the claim described in such notice, the Loss in the amount specified in the Buyer Indemnified Party, at 's notice will be conclusively deemed a Liability of the Seller and the Seller shall pay the amount of such Loss to the Buyer Indemnified Party on demand. If the Seller has timely disputed its sole cost and expense, shall have the right Liability with respect to assume the defence of any such claim, action, suit, proceeding or investigation brought against the Indemnified Party with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromise, consent to the entry Chief Executive Officers of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release each of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Seller and the Buyer Indemnified Party will give proceed in good faith to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to negotiate a resolution of such defence or settlementdispute, and shall permit them to consult with if not resolved through the employees and counsel (if any) negotiations of such Chief Executive Officers within 60 days after the delivery of the Buyer Indemnified Party's notice of such claim, such dispute shall be resolved fully and finally in San Francisco, California by an arbitrator selected pursuant to, and an arbitration governed by, the Commercial Arbitration Rules of the American Arbitration Association. The arbitrator shall resolve the dispute within 30 days after selection and judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
(c) After the Closing, the rights set forth in this Article XIII shall be the Buyer Indemnified Party's sole and exclusive remedies against the Seller for misrepresentations or breaches of covenants contained in this Agreement and the Transaction Documents. Notwithstanding the foregoing:, nothing herein shall prevent any Buyer Indemnified Party from bringing an action based upon allegations of fraud or other intentional breach of an obligation of or with respect to the Seller in connection with this Agreement and the Transaction Documents. In the event such action is brought, the prevailing Party's attorneys' fees and costs shall be paid by the nonprevailing Party.
(d) If Seller and Seller's Bankruptcy Estate cease to exist prior to the completion of the applicable warranty periods, then Buyer may seek remedy under this section against the Class A Creditors (as defined in the Chapter 11 Plan) only and Buyer's remedy is limited solely to the Stock Consideration.
(e) Notwithstanding anything herein to the contrary, Buyer may collect as the amount of any indemnification payments to which it becomes entitled hereunder from Seller or Third Party Beneficiaries as the case may be only by seeking return from the Escrow Agent of Stock Consideration and/or Conversion Shares having a Fair Market Value equal to the amount of such indemnification payments. For purposes of this Section 13.04(d), the "Fair Market Value" of each share of Series B Convertible Preferred Stock shall be the Fair Market Value multiplied by four (4), and the "Fair Market Value" of each Conversion Share shall be the Fair Market Value. At its election, Buyer may pay the amount of any indemnification payments to which it becomes obligated hereunder either by (i) if the defendants in cash payments to Seller (or any such action, suit, proceeding applicable Third Party Beneficiary) or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified issuing to Seller (or any applicable Third Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same Beneficiary) additional Series B Convertible Preferred Stock and/or Conversion Shares having a Fair Market Value equal to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which shall be at the Indemnifying Party’s expense, to represent the Indemnified Party and to otherwise participate in the defence amount of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Partyindemnification payments.
Appears in 1 contract
Method of Asserting Claims. (a) If a Party entitled to indemnification pursuant to the terms hereof (the “Indemnified Party”) intends to seek indemnification under this Article 4 from the other Party (the “Indemnifying Party”), the Indemnified Party shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of any claim or action by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or delay by an Indemnified Party to so notify the Indemnifying Party (as set forth above) shall not relieve the Indemnifying Party of its indemnification obligations hereunder to the Indemnified Party, however the liability which the Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced to the extent that any such delay in or failure to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for herein.
(b) The Indemnifying Party, at its sole cost and expense, shall have the right to assume the defence of any claim, action, suit, proceeding or investigation brought against the Indemnified Party with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such action, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which shall be at the Indemnifying Party’s expense, to represent the Indemnified Party and to otherwise participate in the defence of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Party.
(d) Notwithstanding anything herein contained, an Indemnified Party shall have the right, at its sole cost and expense, to retain counsel to separately represent it in connection with the negotiation, settlement or defence of any claim, action, suit, proceeding or investigation brought by a third party provided, for further certainty, that such counsel shall not, unless agreed by the Indemnifying Party, assume control of the negotiation, settlement or defence.
(e) Except to the extent expressly provided herein, no Indemnified Party shall settle any claim or action with respect to which it has sought or intends to seek indemnification pursuant to this Article 4 without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed.
(f) If the Indemnifying Party does not assume the defence of any claim, action, suit, proceeding or investigation brought against the Indemnified Party, then the Indemnified Party shall have the right to do so on its own behalf and all such expense in so doing shall be added to the amount of the claim for indemnification hereunder by such Indemnified Party as against the Indemnifying Party.
Appears in 1 contract
Sources: Fund Delegation Agreement
Method of Asserting Claims. (a) If a All claims for indemnification by any Indemnified Party entitled shall be asserted and resolved as follows: In the event that any claims or demand for which an Indemnifying Party would be liable to indemnification pursuant to the terms hereof (the “an Indemnified Party”) intends to seek indemnification Party under this Article 4 Agreement is asserted against or sought to be collected from the other such Indemnified Party (the “Indemnifying Party”)by a third party, the Indemnified Party shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of any claim or action by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or delay by an Indemnified Party to so notify the Indemnifying Party (as set forth above) shall not relieve in writing the Indemnifying Party of its indemnification obligations hereunder such claim or demand, specifying the nature of and specific basis for such claim or demand and the amount or the estimated amount thereof to the Indemnified Party, however extent then feasible (which estimate shall not be conclusive of the liability which final amount of such claim and demand (the "Claim Notice"). The Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will shall not be obligated to indemnify the Indemnified Party in with respect of) shall be reduced to the extent that any such delay in claim or failure demand if the Indemnified Party fails to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which notify the Indemnifying Party has under its indemnity provided for herein.
(b) thereof in accordance with the provisions of this Agreement in reasonably sufficient time so that the Indemnifying Party's ability to defend against the claim or demand is not prejudiced. The Indemnifying PartyParty shall have thirty (30) days from the personal delivery or mailing of the Claim Notice (the "Notice Period") to notify the Indemnified Party (i) whether or not the Indemnifying Party disputes its liability to the Indemnified Party hereunder with respect to such claim or demand and (ii) whether or not the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such claim or demand. In the event that the Indemnifying Party notified the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against such claim or demand and except as hereinafter provided, the Indemnifying Party shall have the right to assume defend by all appropriate proceedings, and control the defence settlement of any claim, action, suit, such claim or proceeding which proceedings shall be settled or investigation brought against prosecuted by him to a final conclusion. If the Indemnified Party with counsel designated desires to participate in, but not control, any such defense or settlement it may do so at its sole cost and expense. If requested by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give agrees to cooperate with the Indemnifying Party and its counsel reasonable access in contesting any claim or demand which the Indemnifying Party elects to all business records and other documents relevant contest, including, without limitation, by executing or causing to such defence or settlement, and shall permit them have executed any power of attorney authorizing the Indemnifying Party to consult with the employees and counsel (if any) act on behalf of the Indemnified Party.
(c) Notwithstanding Party or the foregoing:
(i) Companies, or, if the defendants in any such action, suit, proceeding or investigation include both the Indemnified Party appropriate and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available related to the Indemnified Party that are additional to those available to claim in question, in making any counterclaim against the Indemnifying Party and that in such circumstances representation by person asserting the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking third-party claim or has not takendemand, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which shall be at the Indemnifying Party’s expense, to represent the Indemnified Party and to otherwise participate in the defence of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Partyany cross-complaint against any person. For further certainty, only one legal firm No claim may be engaged at settled without the expense consent of the Indemnifying Party. Seller and Buyer (i) agree that any suit, action or other legal proceeding arising out of this Agreement may be brought only in the United States District Court for Illinois, and (ii) consent to the jurisdiction of any such court in any such suit, action or proceedings; and thus waive any objection which such party may have to the laying of venue of any such suit, action or proceedings in any such court. Seller and Buyer agree that this Agreement shall be construed in accordance with, and governed by, the laws of the State of Illinois.
Appears in 1 contract
Sources: Stock Purchase Agreement (Davel Communications Group Inc)
Method of Asserting Claims. (a) If a Party entitled to The party seeking indemnification pursuant to the terms hereof (the “Indemnified PartyIndemnitee”) intends will give prompt written notice to seek indemnification under this Article 4 from the other Party party or parties (the “Indemnifying PartyIndemnitor”), ) of any Claim which it discovers or of which it receives notice after the Indemnified Party shall Closing and which might give the Indemnifying Party notice of such rise to a claim by it for indemnification promptly following against Indemnitor under this Section 10, stating the receipt or determination by the Indemnified Party of actual knowledge or information as nature, basis and (to the factual and legal basis extent known) amount thereof; provided that failure to give prompt notice shall not jeopardize the right of any claim which is subject Indemnitee to indemnification and, where such claim results from the commencement of any claim or action by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or delay by an Indemnified Party to so notify the Indemnifying Party (as set forth above) shall not relieve the Indemnifying Party of its indemnification obligations hereunder to the Indemnified Party, however the liability which the Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced except to the extent that any such delay in or failure to give notice as herein required prejudices the defence ability of the Indemnitor to defend such Claim or to recover any payment under its applicable insurance coverage. In case of any Claim or suit by a third party or by any Governmental Authority, or any legal, administrative or arbitration proceeding (a “Third Party Claim”) with respect to which Indemnitor may have liability under the indemnity agreement contained in this Section 10, Indemnitor shall be entitled to participate in the defense of such Third Party Claim and, to the extent desired by it, to assume the defense of such Third Party Claim, and after notice from Indemnitor to Indemnitee of the election so to assume the defense of such Third Party Claim, Indemnitor will not be liable to Indemnitee for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense of such Third Party Claim unless Indemnitor does not actually assume the defense of such Third Party Claim following notice of such election. Indemnitee and Indemnitor will render to each other such assistance as may reasonably be required of each other in order to insure proper and adequate defense of any such actionThird Party Claim. If the Indemnitor actually assumes the defense of the Indemnitee, suit, proceeding, investigation or claim, or otherwise results in the Indemnitee will not make any increase in the liability which the Indemnifying Party has under its indemnity provided for herein.
(b) The Indemnifying Party, at its sole cost and expense, shall have the right to assume the defence settlement of any claim, action, suit, proceeding or investigation brought against Third Party Claim which might give rise to liability of Indemnitor under the Indemnified Party with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will not, indemnity agreements contained in this Section without the Indemnified Party’s prior written consent (such of Indemnitor, which consent shall not to be unreasonably withheld), settle, compromise, consent and the Indemnitor shall not agree to the entry make any settlement of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of Third Party Claim which indemnification may be sought hereunder (whether or would not include the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a unconditional release of the Indemnified Party from all liabilities arising out of such actionIndemnitee without the Indemnitee’s written consent, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and which consent shall permit them to consult with the employees and counsel (if any) of the Indemnified Partynot be unreasonably withheld.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such action, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which shall be at the Indemnifying Party’s expense, to represent the Indemnified Party and to otherwise participate in the defence of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Party.
Appears in 1 contract
Sources: Securities Purchase Agreement (Methode Electronics Inc)
Method of Asserting Claims. (a) If a Party entitled to indemnification pursuant to the terms hereof (the “Indemnified Party”) intends to seek All claims for indemnification under this Article 4 from 10 shall be asserted and resolved as follows: (a) In the other Party (the “Indemnifying Party”), the Indemnified Party shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of event that any claim or action demand for which an indemnifying party would be liable to the indemnified party under Section 10.1 above is asserted against or sought to be collected by a third party, the indemnified party shall promptly following receipt of written provide the indemnifying party with notice of such third party claim or action. The failure demand (the "Claim Notice"), specifying the nature of such claim or delay by an Indemnified Party to so notify demand and the Indemnifying Party (as set forth above) shall not relieve amount or the Indemnifying Party of its indemnification obligations hereunder to the Indemnified Party, however the liability which the Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced estimated amount thereof to the extent that any then feasible (which estimate shall not be conclusive of the final amount of such delay in claim or failure demand). The indemnifying party shall have one (1) month from its receipt of the Claim Notice (the "Notice Period") to give notice as herein required prejudices notify the defence indemnified party (i) whether or not the indemnifying party disputes all or part of any its liability to the indemnified party hereunder with respect to such action, suit, proceeding, investigation claim or claim, demand and (ii) whether or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for herein.
(b) The Indemnifying Partynot it desires, at its sole cost and expense, shall have to defend the right indemnified party against such claim or demand; provided, however, that the indemnified party is hereby authorized prior to assume and during the defence of Notice Period to file any claimmotion, action, suit, proceeding answer or investigation brought against the Indemnified Party with counsel designated by the Indemnifying Party other pleading necessary or appropriate to protect its interests. If and reasonably satisfactory to the Indemnified Party; provided extent that the Indemnifying Party will notindemnifying party notifies the indemnified party within the Notice Period that it does not dispute such indemnification liability, without the Indemnified Party’s prior written consent (all or such consent not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release part of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such action, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which shall be at the Indemnifying Party’s expense, to represent the Indemnified Party and to otherwise participate in the defence of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Party.indemnification liability shall
Appears in 1 contract
Sources: Share Transfer Agreement (Mechanical Dynamics Inc \Mi\)
Method of Asserting Claims. The party making a claim under -------------------------- this Article 8 is referred to as the "Indemnified Party" and the party against ----------------- whom such claims are asserted under this Article 8 is referred to as the "Indemnifying Party". All claims by an Indemnified Party under this Article 8 ------------------ shall be asserted and resolved as follows:
(a) If a Party entitled to indemnification pursuant to In the terms hereof (the “Indemnified Party”) intends to seek indemnification under this Article 4 from the other Party (the “Indemnifying Party”), the Indemnified Party shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of event that any claim or action demand for which an Indemnifying Party would be liable to an Indemnified Party hereunder is asserted or sought to be collected from such Indemnified Party by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or delay by an Indemnified Party to so shall with reasonable promptness notify the Indemnifying Party (as set forth above) shall not relieve in writing the Indemnifying Party of its indemnification obligations hereunder such claim or demand, specifying the basis for such claim or demand, and the amount or the estimated amount thereof to the extent determinable (which estimate shall not be conclusive of the final amount of such claim or demand) (such notice is referred to as the "Claim Notice"); provided, ------------ -------- however, that any failure to give such Claim Notice will not be deemed a waiver ------- of any rights of the Indemnified Party except to the extent the rights of the Indemnifying Parties are actually prejudiced by such failure. The Indemnifying Party, upon request of the Indemnified Party, shall retain counsel (who shall be reasonably acceptable to the Indemnified Party, however the liability which the Indemnifying Party has ) to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced to the extent that any such delay in or failure to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for herein.
(b) The Indemnifying Party, at its sole cost and expense, shall have the right to assume the defence of any claim, action, suit, proceeding or investigation brought against the Indemnified Party with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such action, suit, proceeding or investigation include both represent the Indemnified Party and shall pay the reasonable fees and disbursements of such counsel with regard thereto; provided, however, that any Indemnified Party is hereby -------- ------- authorized prior to the date on which it receives written notice from the Indemnifying Party designating such counsel, to retain counsel, whose fees and expenses shall be at the expense of the Indemnifying Party, to file any motion, answer or other pleading and take such other action which such Indemnified Party shall deem necessary to protect its interests or those of the Indemnifying Party until the date on which the Indemnified Party is advised by counsel that there are legal defences available to receives such notice from the Indemnified Party that are additional to those available to Indemnifying Party. After the Indemnifying Party and that in shall retain such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not takencounsel, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate its own counsel, but the reasonable costs fees and expenses of which such counsel shall be at the Indemnifying Party’s expense, to represent the Indemnified Party and to otherwise participate in the defence of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnified Party unless (x) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the retention of such counsel or (y) the named parties of any proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not, in connection with any proceedings or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one such firm for the Indemnified Party (except to the extent the Indemnified party retained counsel to protect its (or the Indemnifying Party's) rights prior to the selection of counsel by the Indemnifying Party). If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel in contesting any claim or demand which the Indemnifying Party defends. A claim or demand may not be settled by the Indemnifying Party without the prior written consent of the Indemnified Party (which consent will not be unreasonably withheld) unless, as part of such settlement, the Indemnified Party shall receive a full and unconditional release satisfactory to the Indemnified Party.
(b) In the event any Indemnified Party shall have a claim against any Indemnifying Party hereunder which does not involve a claim or demand being asserted against or sought to be collected from it by a third party, the Indemnified Party shall send a Claim Notice with respect to such claim to the Indemnifying Party.
(c) After delivery of a Claim Notice, so long as any right to indemnification exists pursuant to this Article 8, the affected parties each agreed to retain all Books and Records related to such Claim Notice. In each instance pertaining to a claim by a third party, the Indemnified Party shall have the right to be kept fully informed by the Indemnifying Party and its legal counsel with respect to any legal proceedings. Any information or documents made available to any party hereunder and designated as confidential by the party providing such information or documents and which is not otherwise generally available to the public and not already within the knowledge of the party to whom the information is provided (unless otherwise covered by the confidentiality provisions of any other agreement among the parties hereto, or any of them), and except as may be required be required by applicable law, shall not be disclosed to any third Person (except for the representatives of the party being provided with the information, in which event the party being provided with the information shall request its representatives not to disclose any such information which it otherwise required hereunder to be kept confidential).
(d) An Indemnified Party shall first seek indemnification from the Sellers pursuant to this Article 8, but shall send DNB copies of all correspondence sent to the Sellers pursuant to Section 8.4. To the extent that the Sellers do not fulfill their indemnification obligation for any reason with thirty (30) days of its receipt of Purchaser's demand for payment (or, if such demand is contested pursuant to Section 10.10 of this Agreement, within fifteen (15) days of the resolution of such contest), the Purchaser may seek indemnification from DNB, subject to the limitations set forth in Section 8.5.
Appears in 1 contract
Sources: Asset Contribution Agreement (Unified Financial Services Inc)
Method of Asserting Claims. All claims for indemnification by any Indemnified Party under this Article IX shall be asserted and resolved as follows:
(a) If a Party entitled to indemnification pursuant to In the terms hereof (the “Indemnified Party”) intends to seek indemnification under this Article 4 from the other Party (the “Indemnifying Party”), the Indemnified Party shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of event that any claim or action demand for which an Indemnifying Party would be liable to an Indemnified Party hereunder is asserted against or sought to be collected from such Indemnified Party by a third party, promptly following receipt of written notice said Indemnified Party shall, within twenty (20) days of such third party claim or action. The failure of or delay by an Indemnified Party to so demand being made, notify the Indemnifying Party of such claim or demand, specifying the nature of and specific basis for such claim or demand and the amount or the estimated amount thereof to the extent then feasible (as set forth above) the “Claim Notice”). The estimate of Loss contained in the Claim Notice shall not relieve limit the amount of the Indemnifying Party of its indemnification obligations hereunder to Party’s ultimate liability under the Indemnified Party, however the liability which the claim. The Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will shall not be obligated to indemnify the Indemnified Party in with respect of) shall be reduced to the extent that any such delay in claim or failure demand if the Indemnified Party fails to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which notify the Indemnifying Party has under its indemnity provided for herein.
thereof in accordance with the provisions of this Agreement within said twenty (b20) day period. The Indemnifying Party shall have 30 days from the personal delivery or mailing of the Claim Notice (the “Notice Period”) to notify the Indemnified Party (i) whether or not the liability of the Indemnifying Party to the Indemnified Party hereunder with respect to such claim or demand is disputed, and (ii) whether or not the Indemnifying Party desires, at the sole cost and expense of the Indemnifying Party, to defend the Indemnified Party against such claim or demand; provided, however, that any Indemnified Party is hereby authorized prior to and during the Notice Period to file any motion, answer or other pleading which it shall deem necessary or appropriate to protect its interest or those of the Indemnifying Party and not unreasonably prejudicial to the Indemnifying Party. In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against such claim or demand, then, except as hereinafter provided, the Indemnifying Party shall have the right to defend by all appropriate proceedings, which proceedings shall be promptly settled or prosecuted by it to a final conclusion. If the Indemnified Party desires to participate in, but not control, any such defense or settlement it may do so at its sole cost and expense. If requested by the Indemnifying Party, shall have the right to assume the defence of any claim, action, suit, proceeding or investigation brought against the Indemnified Party agrees to cooperate with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access in contesting any claim or demand which the Indemnifying Party elects to all business records contest, or, if appropriate and other documents relevant related to such defence the claim in question, in making any counterclaim against the person asserting the third party claim or settlementdemand, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants or any cross complaint against any person but in any such action, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which shall be case at the Indemnifying Party’s expense, to represent the Indemnified Party sole cost and to otherwise participate in the defence of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Party. No claim may be settled without the consent of the Indemnifying Party, unless such settlement includes the complete release of the Indemnifying Party.
(b) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder which does not involve a claim or demand being asserted against or sought to be collected from it by a third party, the Indemnified Party shall send a Claim Notice with respect to such claim to the Indemnifying Party. If the Indemnifying Party does not notify the Indemnified Party within the Notice Period that it disputes such claim, the amount of such claim shall be conclusively deemed a liability of the Indemnifying Party hereunder. If the Indemnifying Party has disputed such claim, as provided above, such dispute shall be resolved by arbitration as provided in Section 11.11.
Appears in 1 contract
Sources: Asset Purchase Agreement (Stater Bros Holdings Inc)
Method of Asserting Claims. (a) If a Party entitled to indemnification pursuant to the terms hereof (the “Indemnified Party”) intends to seek indemnification under this Article 4 7 from the other Party (the “Indemnifying Party”), the Indemnified Party shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of any claim or action by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or delay by an Indemnified Party to so notify the Indemnifying Party (as set forth above) shall not relieve the Indemnifying Party of its indemnification obligations hereunder to the Indemnified Party, however the liability which the Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 7 (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced to the extent that any such delay in or failure to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for herein.
(b) The Indemnifying Party, at its sole cost and expense, shall have the right to assume the defence of any claim, action, suit, proceeding or investigation brought against the Indemnified Party with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment judgement in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such action, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which shall be at the Indemnifying Party’s expense, to represent the Indemnified Party and to otherwise participate in the defence of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Party.
(d) Notwithstanding anything herein contained, an Indemnified Party shall have the right, at its sole cost and expense, to retain counsel to separately represent it in connection with the negotiation, settlement or defence of any claim, action, suit, proceeding or investigation brought by a third party provided, for further certainty, that such counsel shall not, unless agreed by the Indemnifying Party, assume control of the negotiation, settlement or defence.
(e) Except to the extent expressly provided herein, no Indemnified Party shall settle any claim or action with respect to which it has sought or intends to seek indemnification pursuant to this Article 7 without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed.
(f) If the Indemnifying Party does not assume the defence of any claim, action, suit, proceeding or investigation brought against the Indemnified Party, then the Indemnified Party shall have the right to do so on its own behalf and all such expense in so doing shall be added to the amount of the claim for indemnification hereunder by such Indemnified Party as against the Indemnifying Party.
Appears in 1 contract
Sources: Administrative Services Agreement
Method of Asserting Claims. (a) If The party making a Party entitled to indemnification pursuant to the terms hereof (the “Indemnified Party”) intends to seek indemnification claim under this Article 4 from VIII is referred to as the other Party ("Indemnified Party" and the “party against whom such claims are asserted under this Article VIII is referred to as the "Indemnifying Party”), the ." All claims by any Indemnified Party under this Article VIII shall give be asserted and resolved as follows: In the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of event that any claim or action demand for which an Indemnifying Party would be liable to an Indemnified Party hereunder is asserted against or sought to be collected from such Indemnified Party by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or delay by an said Indemnified Party to so shall, with reasonable promptness, notify the Indemnifying Party (as set forth above) shall not relieve in writing the Indemnifying Party of its indemnification obligations hereunder such claim or demand, specifying the basis for such claim or demand, and the amount or the estimated amount thereof to the extent then determinable (which estimate shall not be conclusive of the final amount of such claim and demand; the "Claim Notice"); provided, however, that any failure to give such Claim Notice will not be deemed a waiver of any rights of the Indemnified Party except to the extent the rights of the Indemnifying Party are actually prejudiced by such failure. The Indemnifying Party, upon request of the Indemnified Party, shall retain counsel (who shall be reasonably acceptable to the Indemnified Party, however the liability which the Indemnifying Party has ) to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced to the extent that any such delay in or failure to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for herein.
(b) The Indemnifying Party, at its sole cost and expense, shall have the right to assume the defence of any claim, action, suit, proceeding or investigation brought against the Indemnified Party with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such action, suit, proceeding or investigation include both represent the Indemnified Party and shall pay the reasonable fees and disbursements of such counsel with regard thereto provided, however, that any Indemnified Party is hereby authorized prior to the date on which it receives written notice from the Indemnifying Party designating such counsel, to retain counsel, whose fees and expenses shall be at the expense of the Indemnifying Party, to file any motion, answer or other pleading and take such other action which it reasonably shall deem necessary to protect its interests or those of the Indemnifying Party until the date on which the Indemnified Party is advised by counsel that there are legal defences available to receives such notice from the Indemnified Party that are additional to those available to Indemnifying Party. After the Indemnifying Party and that in shall retain such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not takencounsel, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate its own counsel, but the reasonable costs fees and expenses of which such counsel shall be at the expense of such Indemnified Party unless (x) the Indemnifying Party’s expense, Party and the Indemnified Party shall have mutually agreed to represent the retention of such counsel or (y) the named parties of any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to otherwise participate actual or potential differing interests between them. The Indemnifying Party shall not, in connection with any proceedings or related proceedings in the defence same jurisdiction, be liable for the fees and expenses of more than one such claim, action, suit, proceeding firm for the Indemnified Party (except to the extent the Indemnified Party retained counsel to protect its (or investigation on behalf the Indemnifying Party's) rights prior to the selection of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of counsel by the Indemnifying Party.) If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel in contesting any claim or demand which the Indemnifying Party defends. A claim or demand may not be settled by the Indemnifying Party without the prior written consent of the Indemnified Party (which consent will not be unreasonably withheld) unless, as part of such settlement, the Indemnified Party shall receive a full and unconditional release reasonably satisfactory to the Indemnified Party.
Appears in 1 contract
Method of Asserting Claims. (a) If a All claims for indemnification by any Indemnified Party entitled to indemnification pursuant to the terms hereof (the “Indemnified Party”) intends to seek indemnification under this Article 4 from VII shall be asserted and resolved as follows:
a. In the other Party (the “Indemnifying Party”), the Indemnified Party shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of event that any claim or action demand for which an Indemnifying Party would be liable to an Indemnified Party hereunder is asserted against or sought to be collected from such Indemnified Party by a third party, promptly following receipt of written notice said Indemnified Party shall, within sixty (60) days of such third party claim or action. The failure of or delay by an Indemnified Party to so demand being made, notify the Indemnifying Party of such claim or demand, specifying the nature of and specific basis for such claim or demand and the amount or the estimated amount thereof to the extent then feasible (as set forth above) the "Claim Notice"). The estimate of Loss contained in the Claim Notice shall not relieve limit the amount of the Indemnifying Party of its indemnification obligations hereunder to Party's ultimate liability under the Indemnified Party, however the liability which the claim. The Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will shall not be obligated to indemnify the Indemnified Party in with respect of) shall be reduced to the extent that any such delay in claim or failure demand if the Indemnified Party fails to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which notify the Indemnifying Party has under its indemnity provided for herein.
thereof in accordance with the provisions of this Agreement within said sixty (b60) day period. The Indemnifying Party shall have 30 days from the personal delivery or mailing of the Claim Notice (the "Notice Period") to notify the Indemnified Party (1) whether or not the liability of the Indemnifying Party to the Indemnified Party hereunder with respect to such claim or demand is disputed, and (2) whether or not the Indemnifying Party desires, at the sole cost and expense of the Indemnifying Party, to defend the Indemnified Party against such claim or demand; provided, however, that any Indemnified Party is hereby authorized prior to and during the Notice Period to file any motion, answer or other pleading which it shall deem necessary or appropriate to protect its interest or those of the Indemnifying Party and not unreasonably prejudicial to the Indemnifying Party. In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against such claim or demand, then, except as hereinafter provided, the Indemnifying Party shall have the right to defend by all appropriate proceedings, which proceedings shall be promptly settled or prosecuted by it to a final conclusion. If the Indemnified Party desires to participate in, but not control, any such defense or settlement it may do so at its sole cost and expense. If requested by the Indemnifying Party, shall have the right to assume the defence of any claim, action, suit, proceeding or investigation brought against the Indemnified Party agrees to cooperate with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access in contesting any claim or demand which the Indemnifying Party elects to all business records contest, or, if appropriate and other documents relevant related to such defence the claim in question, in making any counterclaim against the person asserting the third party claim or settlementdemand, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants or any cross complaint against any person but in any such action, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which shall be case at the Indemnifying Party’s expense, to represent the Indemnified Party sole cost and to otherwise participate in the defence of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Party. No claim may be settled without the consent of the Indemnifying Party, unless such settlement includes the complete release of the Indemnifying Party.
b. In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder which does not involve a claim or demand being asserted against or sought to be collected from it by a third party, the Indemnified Party shall send a Claim Notice with respect to such claim to the Indemnifying Party. If the Indemnifying Party does not notify the Indemnified Party within the Notice Period that it disputes such claim, the amount of such claim shall be conclusively deemed a liability of the Indemnifying Party hereunder.
Appears in 1 contract
Sources: Agreement and Plan of Exchange (American Aircarriers Support Inc)
Method of Asserting Claims. The party making a claim under this Article VII is referred to as the "INDEMNIFIED PARTY" and the party against whom such claims are asserted under this Article VII is referred to as the "INDEMNIFYING PARTY". All claims by any Indemnified Party under this Article VII shall be asserted and resolved as follows:
(a) If a Party entitled to indemnification pursuant to In the terms hereof (the “Indemnified Party”) intends to seek indemnification under this Article 4 from the other Party (the “Indemnifying Party”), the Indemnified Party shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of event that any claim or action demand for which an Indemnifying Party would be liable to an Indemnified Party hereunder is asserted against or sought to be collected from such Indemnified Party by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or delay by an said Indemnified Party to so shall with reasonable promptness notify the Indemnifying Party (as set forth above) shall not relieve in writing the Indemnifying Party of its indemnification obligations hereunder such claim or demand, specifying the nature of the specific basis for such claim or demand, and the amount or the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim and demand; the "CLAIM NOTICE"); PROVIDED, HOWEVER, that any failure to give such Claim Notice will not be deemed waiver of any rights of the Indemnified Party except to the extent the rights of the Indemnifying Party are actually prejudiced by such failure. The Indemnifying Party, upon request of the Indemnified Party, shall retain counsel (who shall be reasonably acceptable to the Indemnified Party, however the liability which the Indemnifying Party has ) to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced to the extent that any such delay in or failure to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for herein.
(b) The Indemnifying Party, at its sole cost and expense, shall have the right to assume the defence of any claim, action, suit, proceeding or investigation brought against the Indemnified Party with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such action, suit, proceeding or investigation include both represent the Indemnified Party and shall pay the fees and disbursements of such counsel with regard thereto; PROVIDED, HOWEVER, that any Indemnified Party is hereby authorized prior to the date on which it receives written notice from the Indemnifying Party designating such counsel, to retain counsel, whose fees and expenses shall be at the expense of the Indemnifying Party, to file any motion, answer or other pleading and take such other action which it reasonably shall deem necessary to protect its interests or those of the Indemnifying Party until the date on which the Indemnified Party is advised by counsel that there are legal defences available to received such notice from the Indemnified Party that are additional to those available to Indemnifying Party. After the Indemnifying Party and that in shall retain such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not takencounsel, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate its own counsel, but the reasonable costs fees and expenses of which such counsel shall be at the expense of such Indemnified Party unless (x) the Indemnifying Party’s expense, Party and the Indemnified Party shall have mutually agreed to represent the retention of such counsel or (y) the named parties of any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to otherwise participate actual or potential differing interests between them. The Indemnifying Party shall not, in connection with any proceedings or related proceedings in the defence same jurisdiction, be liable for the fees and expenses of more than one such firm for the Indemnified Party (except to the extent the Indemnified Party retained counsel to protect its (or the Indemnifying Party's) right prior to the selection of counsel by the Indemnifying Party). If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel in contesting any claim or demand which the Indemnifying Party defends. A claim or demand may not be settled by the Indemnifying Party without the prior written consent of the Indemnified Party unless, the settlement is for cash and as part of such settlement, the Indemnified Party shall receive a full and unconditional release reasonably satisfactory to the Indemnified Party.
(b) In the event any Indemnified Party shall have a claim against any Indemnifying Party hereunder which does not involve a claim or demand being asserted against or sought to be collected from it by a third party, the Indemnified Party shall send a Claim Notice with respect to such claim to the Indemnifying Party. If the Indemnifying Party does not notify the Indemnified Party within forty-five (45) days of receipt of the Claim Notice that it disputes such claim, action, suit, proceeding or investigation on behalf the amount of such Indemnified Party. For further certainty, only one legal firm may claims shall be engaged at the expense conclusively deemed a liability of the Indemnifying PartyParty hereunder.
(c) So long as any right to indemnification exists pursuant to this Article VII, the affected parties each agree to retain all Books and Records related to the Claim Notice. In each instance, the Indemnified Party shall have right to be kept fully informed by the Indemnifying Party and its legal counsel with respect to any legal proceedings. Any information or documents made available to any party hereunder and designated as confidential by the party providing such information or documents and which is not otherwise generally available to the public and not already within the best knowledge of the party to whom the information is provided (unless otherwise covered by the confidentiality provisions of any other agreement among the parties hereto, or any of them), and except as may be required by applicable law, shall not be disclosed to any third Person (except for the representatives of the party being provided with the information, in which event the party being provided with the information shall request its representatives not to disclose any such information which it otherwise required hereunder to be kept confidential.)
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Method of Asserting Claims. All claims for indemnification by any Indemnified Party under this Article X shall be asserted and resolved as follows:
(a) If a Party entitled to indemnification pursuant to In the terms hereof (the “Indemnified Party”) intends to seek indemnification under this Article 4 from the other Party (the “Indemnifying Party”), the Indemnified Party shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of event that any claim or action demand for which an Indemnifying Party would be liable to an Indemnified Party hereunder is asserted against or sought to be collected from such Indemnified Party by a third party, promptly following receipt of written notice said Indemnified Party shall, within twenty (20) days of such third party claim or action. The failure of or delay by an Indemnified Party to so demand being made, notify the Indemnifying Party of such claim or demand, specifying the nature of and specific basis for such claim or demand and the amount or the estimated amount thereof to the extent then feasible (as set forth above) the "Claim Notice"). The estimate of Loss contained in the Claim Notice shall not relieve limit the amount of the Indemnifying Party of its indemnification obligations hereunder to Party's ultimate liability under the Indemnified Party, however the liability which the claim. The Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will shall not be obligated to indemnify the Indemnified Party in with respect of) shall be reduced to the extent that any such delay in claim or failure demand if the Indemnified Party fails to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which notify the Indemnifying Party has under its indemnity provided for herein.
thereof in accordance with the provisions of this Agreement within said twenty (b20) day period. The Indemnifying Party shall have 30 days from the personal delivery or mailing of the Claim Notice (the "Notice Period") to notify the Indemnified Party (i) whether or not the liability of the Indemnifying Party to the Indemnified Party hereunder with respect to such claim or demand is disputed, and (ii) whether or not the Indemnifying Party desires, at the sole cost and expense of the Indemnifying Party, to defend the Indemnified Party against such claim or demand; provided, however, that any Indemnified Party is hereby authorized prior to and during the Notice Period to file any motion, answer or other pleading which it shall deem necessary or appropriate to protect its interest or those of the Indemnifying Party and not unreasonably prejudicial to the Indemnifying Party. In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against such claim or demand, then, except as hereinafter provided, the Indemnifying Party shall have the right to defend by all appropriate proceedings, which proceedings shall be promptly settled or prosecuted by it to a final conclusion. If the Indemnified Party desires to participate in, but not control, any such defense or settlement it may do so at its sole cost and expense. If requested by the Indemnifying Party, shall have the right to assume the defence of any claim, action, suit, proceeding or investigation brought against the Indemnified Party agrees to cooperate with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access in contesting any claim or demand which the Indemnifying Party elects to all business records contest, or, if appropriate and other documents relevant related to such defence the claim in question, in making any counterclaim against the person asserting the third party claim or settlementdemand, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants or any cross complaint against any person but in any such action, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which shall be case at the Indemnifying Party’s expense, to represent the Indemnified Party sole cost and to otherwise participate in the defence of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Party. No claim may be settled without the consent of the Indemnified Party, unless such settlement includes the complete release of the Indemnified Party and does not require the Indemnified Party to take or refrain from taking any action.
(b) In the event any Indemnified Party has a claim against any Indemnifying Party hereunder which does not involve a claim or demand being asserted against or sought to be collected from it by a third party, the Indemnified Party shall send a Claim Notice with respect to such claim to the Indemnifying Party. If the Indemnifying Party does not notify the Indemnified Party within the Notice Period that it disputes such claim, the amount of such claim shall be conclusively deemed a liability of the Indemnifying Party hereunder. If the Indemnifying Party has disputed such claim, as provided above, such dispute shall be resolved by arbitration as provided in Section 13.11.
Appears in 1 contract
Method of Asserting Claims. (a) If a Party any person entitled to indemnification pursuant to the terms Section 6.1 hereof (an "Indemnitee") is threatened in writing with any claim, or any claim is presented in writing to, or any action or proceeding is formally commenced against, any of the “Indemnified Party”) intends Indemnitees which may give rise to seek the right of indemnification under this Article 4 from the other Party (the “Indemnifying Party”)hereunder, the Indemnified Party shall Indemnitee will promptly give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of any claim or action by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or thereof to each indemnifying party; provided, however, that any delay by an Indemnified Party to Indemnitee in so notify notifying the Indemnifying Party (as set forth above) indemnifying party shall not relieve the Indemnifying Party indemnifying party of its indemnification obligations any liability to any of the Indemnitees hereunder to the Indemnified Party, however the liability which the Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced except to the extent that any the indemnifying party shall have been actually prejudiced as a result of such delay in or failure to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for hereinfailure.
(b) The Indemnifying Partyindemnifying party or parties, by delivery of written notice to an Indemnitee within 30 days of notice of claim to indemnity from an Indemnitee, may elect to assume the defense of such claim, action or proceeding at the expense of the indemnifying party; provided, however, that (a) unless such written notice shall be accompanied by a written agreement of each indemnifying party acknowledging the liability of the indemnifying parties to the Indemnitees as a result of this Agreement for any indemnified damage which any Indemnitee might incur or suffer as a result of such claim, action or proceeding or the contesting thereof, each indemnifying party shall be jointly and severally liable for the attorneys' fees and expenses of the Indemnitee, if any, incurred in connection with defending such claim; (b) counsel undertaking such defense shall be reasonably acceptable to the Indemnitee; (c) the indemnifying parties shall mutually elect to contest such claim, action or proceeding and shall conduct and settle such contest in a joint manner, and if the indemnifying parties shall fail at any time to agree, the Indemnitee shall have no obligation to contest such claim, action or proceeding and (d) if the Indemnitee requests in writing that such claim, action or proceeding not to be contested, then it shall not be contested but shall not be covered by the indemnities provided herein. The indemnifying parties may settle an indemnifiable matter after delivering a written description of the proposed settlement to and receiving consent from the Indemnitee. In the event the Indemnitee unreasonably declines to consent to such settlement, then the Indemnitee shall have no right to indemnification beyond the amount of the proposed settlement. In the event the indemnifying parties jointly elect to contest an indemnifiable matter, the Surviving Corporation, Parent and the Principals shall permit each other reasonable access, subject to the provisions of Section 4.6 hereof, to their respective books and records and shall otherwise cooperate in connection with such claim. If the indemnifying parties do not jointly elect to contest an indemnifiable matter, they shall cooperate with the Indemnitee to the extent any of them has knowledge of facts or circumstances relating to such matter, and the Indemnitee shall have the exclusive right to prosecute, defend, compromise, settle or pay any claim, but the Indemnitee shall not be obligated to do so; provided, however, that, should the Indemnitee elect not to exercise its right exclusively to prosecute, defend, compromise, settle or pay such claim, any indemnifying party may elect to do so at its sole cost and expense, shall have the right to assume the defence of any claim, action, suit, proceeding or investigation brought against the Indemnified Party with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such action, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available To secure their obligations pursuant to the Indemnified Party that are additional provisions of this Section, the Principals agree to those available escrow shares of Parent Common Stock issuable to them in the Merger with an aggregate value of $1,425,000.00 (based upon the Average Closing Price), pursuant to the Indemnifying Party terms and that conditions of the Escrow Agreement. Indemnity obligations hereunder shall be satisfied, in such circumstances representation by the same counsel would be inappropriate; or
(ii) if case of indemnification of any Buyer Indemnified Person, through the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice release of same Parent Common Stock pursuant to the Indemnifying PartyEscrow Agreement, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right such shares to retain separate counsel, the reasonable costs of which shall be at the Indemnifying Party’s expense, to represent the Indemnified Party and to otherwise participate in the defence of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense valued as of the Indemnifying Partylast reported sale on the last trading day prior to the release as reported in The Wall Street Journal, or its successor.
Appears in 1 contract
Method of Asserting Claims. (a) If a Party entitled to indemnification pursuant to In the terms hereof (the “Indemnified Party”) intends to seek indemnification under this Article 4 from the other Party (the “Indemnifying Party”), the Indemnified Party shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of event that any claim or action demand for which the Seller could be liable to a Purchaser Indemnitee hereunder is asserted or sought to be collected from a Purchaser Indemnitee by a third party, the Purchaser Indemnitee shall promptly following receipt of written notice notify the Seller in writing of such third party claim or action. The failure demand, specifying the nature of such claim or delay by an Indemnified Party to so notify demand and the Indemnifying Party (as set forth above) shall not relieve the Indemnifying Party of its indemnification obligations hereunder to the Indemnified Party, however the liability which the Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced amount or estimated amount thereof to the extent then feasible, which estimate shall not be conclusive of the final amount of such claim and demand (the "Claim Notice"). The Seller shall have 20 days from the date that such Claim Notice is made hereunder (the "Notice Period") to notify the Purchaser Indemnitee in writing (A) whether or not it disputes its liability to the Purchaser Indemnitee hereunder with respect to such claim or demand, and (B) notwithstanding any such delay in dispute, whether or failure to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for herein.
(b) The Indemnifying Partynot it desires, at its sole cost and expense, to defend the Purchaser Indemnitee against such claim or demand.
(a) If the Seller disputes its liability with respect to such claim or demand or the amount thereof (whether or not the Seller desires to defend the Purchaser Indemnitee against such claim or demand as provided in subsections (b) and (c) below), such dispute shall be resolved in compliance with Section 6.5. Pending the resolution of any dispute by the Seller of its liability with respect to any claim or demand, such claim or demand shall not be settled without the prior written consent of the Purchaser Indemnitee.
(b) In the event that the Seller notifies the Purchaser Indemnitee within the Notice Period that it desires to defend the Purchaser Indemnitee against such claim or demand then, except as hereinafter provided, the Seller shall have the right to assume defend the defence Purchaser Indemnitee by appropriate proceedings, which proceedings shall be promptly settled or prosecuted by it to a final conclusion in such a manner as to avoid any risk of the Purchaser Indemnitee becoming subject to liability for any claimother matter; PROVIDED, actionHOWEVER, suit, proceeding or investigation brought against the Indemnified Party with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will Seller shall not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromiseof the Purchaser Indemnitee, consent to the entry of any judgment against the Purchaser Indemnitee or enter into any settlement or compromise which does not include, as an unconditional term thereof, the giving by the claimant or plaintiff to the Purchaser Indemnitee of a release, in form and substance satisfactory to the Purchaser Indemnitee, from all liability or otherwise seek to terminate any action, suit, proceeding, investigation or claim obligations in respect of which indemnification may be sought hereunder (whether such claim or litigation. If the Purchaser Indemnitee desires to participate in, but not the Indemnified Party is a party thereto) unless control, any such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence defense or settlement, it may do so at its sole cost and shall permit them to consult with the employees and expense through counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such action, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which shall be at the Indemnifying Party’s expense, to represent the Indemnified Party and to otherwise participate in the defence of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Party.its
Appears in 1 contract
Method of Asserting Claims. The party seeking indemnification (the "Indemnitee") from the party from whom indemnification is claimed (the "Indemnitor") shall follow the following conditions and procedures:
(a) If a Party entitled to indemnification pursuant to In the terms hereof (the “Indemnified Party”) intends to seek indemnification under this Article 4 from the other Party (the “Indemnifying Party”), the Indemnified Party shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of event that any claim or action demand for which an Indemnitee may claim indemnity is asserted against or sought to be collected from an Indemnitee by a third party, promptly the Indemnitee shall notify the Indemnitor within 20 days following the receipt by the Indemnitee of written such claim or demand, specifying the nature of such claim or demand and the amount or the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim and demand) (the "Claim Notice"). Failure of an Indemnitee to so notify an Indemnitor within such 20 day period shall not relieve an Indemnitor of its obligation to indemnify the Indemnitee for such claim or demand unless the delay in giving notice of such claim or demand in fact materially prejudices the defense of such claim or demand. Any party hereto against whom a claim or demand is asserted by a third party shall, without prejudice to any right of indemnification hereunder, appropriately respond to such claim or demand (whether by answer, denial, request for extension of time or other action. The failure of ) to such claim or delay by an Indemnified Party demand within any applicable time period, so as to so notify preserve any rights or remedies it or any other party may have against the Indemnifying Party (as set forth above) shall not relieve the Indemnifying Party of its indemnification obligations hereunder to the Indemnified Party, however the liability which the Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced to the extent that any Person making such delay in claim or failure to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for hereindemand.
(b) The Indemnifying PartyAn Indemnitor shall have 30 days from the date on which the Claim Notice is duly given (the "Notice Period") to notify an Indemnitee (i) whether or not it disputes the liability of the Indemnitor to the Indemnitee hereunder with respect to such claim or demand and (ii) whether or not the Indemnitor desires to defend the Indemnitee against such claim or demand. In the event an Indemnitor notifies an Indemnitee within the Notice Period that it desires to defend the Indemnitee against such a claim or demand from the Indemnitee, then except as hereinafter provided the Indemnitor shall defend, at its sole cost and expense, the Indemnitee by appropriate proceedings, and shall have control the right to assume the defence conduct of any claimsuch defense; provided, actionhowever, suit, proceeding or investigation brought against the Indemnified Party with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will Indemnitor shall not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromiseof the Indemnitee, consent to the entry of any judgment in against the Indemnitee or otherwise seek enter into any settlement or compromise which does not include, as an unconditional term thereof, the giving by the claimant or plaintiff to terminate any action, suit, proceeding, investigation or claim the Indemnitee of a release from all liability in respect of which indemnification may be sought hereunder (whether such claim or litigation. If the Indemnitee desires to participate in, but not the Indemnified Party is a party thereto) unless control, any such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence defense or settlement, it may do so at its sole cost and shall permit them to consult with the employees and counsel (if any) of the Indemnified Partyexpense.
(c) Notwithstanding Prior to an Indemnitor's settling any claim or demand the foregoing:
(i) if the defendants in any such action, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or defense of which it has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigationassumed control, the Indemnified Party has provided written Indemnitor shall obtain the Indemnitee's approval, confirmed in writing in accordance with the notice provisions hereof, which approval shall not be unreasonably withheld or delayed. If an Indemnitee notifies an Indemnitor of same to its disapproval of such settlement, the Indemnifying PartyIndemnitee shall thereupon become liable, from and after the Indemnifying Party has not rectified date of its disapproval, for the situation within a reasonable time; then amount of any award, judgment, costs or expenses (including attorney fees) in excess of the Indemnified Party proposed settlement amount and shall have the right to retain separate counselelect to control the defense of such claim at its sole cost and expense.
(d) In the event an Indemnitee should have a claim against an Indemnitor hereunder which does not involve a claim or demand being asserted against or sought to be collected from the Indemnitee (or TPGC or the Subsidiaries, if Buyer is the Indemnitee) by a third party, the reasonable costs of which Indemnitee shall be at promptly send a Claim Notice with respect to such claim to the Indemnifying Party’s expense, to represent Indemnitor. If the Indemnified Party and to otherwise participate in Indemnitor does not notify the defence of Indemnitee within the Notice Period that it disputes such claim, action, suit, proceeding or investigation on behalf the Indemnitor shall be liable for the amount of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Partyany resulting Indemnifiable Losses.
Appears in 1 contract
Method of Asserting Claims. (a) If a Party any person entitled to indemnification pursuant to the terms Section 7.1 hereof (an "Indemnitee") is threatened in writing with any claim, or any claim is presented in writing to, or any action or proceeding is formally commenced against, any of the “Indemnified Party”) intends Indemnitees which may give rise to seek the right of indemnification under this Article 4 from the other Party (the “Indemnifying Party”)hereunder, the Indemnified Party shall Indemnitee will promptly give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of any claim or action by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or thereof to each indemnifying party; provided, however, that any delay by an Indemnified Party to Indemnitee in so notify notifying the Indemnifying Party (as set forth above) indemnifying party shall not relieve the Indemnifying Party indemnifying party of its indemnification obligations any liability to any of the Indemnitees hereunder to the Indemnified Party, however the liability which the Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced except to the extent that any the indemnifying party shall have been actually prejudiced as a result of such delay in or failure to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for hereinfailure.
(b) The Indemnifying Partyindemnifying party or parties, at its sole cost and expenseby delivery of written notice to an Indemnitee within 30 days of notice of claim to indemnity from an Indemnitee, shall have the right may elect to assume the defence of any claim, action, suit, proceeding or investigation brought against the Indemnified Party with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such action, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which shall be at the Indemnifying Party’s expense, to represent the Indemnified Party and to otherwise participate in the defence defense of such claim, action, suit, action or proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Partyindemnifying party; provided, however, that (i) unless such written notice shall be accompanied by a written agreement of each indemnifying party acknowledging the liability of the indemnifying parties to the Indemnitees as a result of this Agreement for any indemnified damage which any Indemnitee might incur or suffer as a result of such claim, action or proceeding or the contesting thereof, each indemnifying party shall be jointly and severally liable for the attorneys' fees and expenses of the Indemnitee, if any, incurred in connection with defending such claim; (ii) counsel undertaking such defense shall be reasonably acceptable to the Indemnitee; (iii) the indemnifying parties shall mutually elect to contest such claim, action or proceeding and shall conduct and settle such contest in a joint manner, and if the indemnifying parties shall fail at any time to agree, the Indemnitee shall have no obligation to contest such claim, action or proceeding; and (iv) if the Indemnitee requests in writing that such claim, action or proceeding not to be contested, then it shall not be contested but shall not be covered by the indemnities provided herein. The indemnifying parties may settle an indemnifiable matter after delivering a written description of the proposed settlement to and receiving consent from the Indemnitee. In the event the Indemnitee unreasonably declines to consent to such settlement, then the Indemnitee shall have no right to indemnification beyond the amount of the proposed settlement. In the event the indemnifying parties jointly elect to contest an indemnifiable matter, HSOA and the SELLER shall permit the other party reasonable access to their respective books and records and shall otherwise cooperate in connection with such claim. If the indemnifying parties do not jointly elect to contest an indemnifiable matter, they shall cooperate with the Indemnitee to the extent any of them has knowledge of facts or circumstances relating to such matter, and the Indemnitee shall have the exclusive right to prosecute, defend, compromise, settle or pay any claim, but the Indemnitee shall not be obligated to do so; provided, however, that, should the Indemnitee elect not to exercise its right exclusively to prosecute, defend, compromise, settle or pay such claim, any indemnifying party may elect to do so at its sole expense.
Appears in 1 contract
Sources: Plan of Merger and Stock Purchase Agreement (Home Solutions of America Inc)
Method of Asserting Claims. All claims for indemnification under Sections 11.1 and 11.2 by any party to be indemnified thereunder (an "Indemnified Party") will be asserted and resolved as follows:
(a) If In the case of a Party entitled claim or demand made by any person not a party to indemnification pursuant to this Agreement against the terms hereof (the “Indemnified Party”) intends to seek indemnification under this Article 4 from the other Party (the “Indemnifying Party”a "Third Party Claim"), the Indemnified Party shall give the Indemnifying Party deliver a written notice of such claim for indemnification promptly following to the receipt or determination by other party (the "Indemnifying Party") enclosing a copy of all papers served, if any, on the Indemnified Party of actual knowledge or information as (a "Claim Notice") to the factual and legal basis of any claim which is subject to indemnification and, where Indemnifying Party within thirty (30) Business Days after receipt by such claim results from the commencement of any claim or action by a third party, promptly following receipt Indemnified Party of written notice of the Third Party Claim; provided, however, that failure to give such third party claim or action. The failure of or delay by an Indemnified Party Claim Notice shall not affect the indemnification provided hereunder except to so notify the extent the Indemnifying Party (shall have been actually prejudiced as set forth above) shall not relieve the Indemnifying Party a result of its indemnification obligations hereunder to the Indemnified Party, however the liability which the Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced to the extent that any such delay in or failure to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for hereinfailure.
(b) The Indemnifying Party, at its sole cost and expense, Party shall have the right to assume the defence of any claim, action, suit, proceeding or investigation brought against cooperate with the Indemnified Party with counsel designated by in the Indemnifying defense of any Third Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will notClaims, including, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld)limitation, settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business by providing records and other documents information which are reasonably relevant to such defence or settlementThird Party Claim, and shall permit them making employees available on a mutually convenient basis to consult with the employees provide additional information and counsel (if any) explanation of the Indemnified Partyany material provided hereunder.
(c) Notwithstanding In the foregoing:
(i) if the defendants in event any such action, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Partyshould have a claim under Section 11.1 or 11.2 that does not involve a Third Party Claim, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided deliver a written notice notification of same a claim for indemnity with reasonable promptness to the Indemnifying Party, specifying the nature of and basis for such claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, if determinable, determined in good faith, of such claim; provided, however, that the failure to determine or determine adequately the amount or estimated amount of any claim shall in no way limit the rights of an Indemnified Party pursuant to this Article 11. The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim described in such Indemnity Notice or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes the claim described in such Indemnity Notice, the Indemnified Expense in the amount specified in the Indemnity Notice will be conclusively deemed a liability of the Indemnifying Party under Section 11.1 or 11.2 and the Indemnifying Party has not rectified shall pay the situation within a reasonable time; then amount of such Loss to the Indemnified Party shall have on demand. If the right Indemnifying Party has timely disputed its liability with respect to retain separate counselsuch claim, the reasonable costs of which shall be at the Indemnifying Party’s expense, to represent Party and the Indemnified Party and will proceed in good faith to otherwise participate in the defence negotiate a resolution of such claimdispute, actionand if not resolved through negotiations within thirty (30) days, suitsuch dispute shall be resolved by litigation in a court of competent jurisdiction.
(d) Other than as specifically provided in this Agreement, proceeding the rights and remedies of the Seller and the Purchaser under this Article 11 are exclusive and in lieu of any and all other rights and remedies which the Seller and the Purchaser may have under this Agreement or investigation otherwise for monetary relief with respect to any breach or failure to perform any representation, warranty, covenant or agreement set forth in this Agreement. The rights and obligations of indemnification under this Article 11 shall not be limited or subject to set-off based on behalf any violation or alleged violation of any obligation under this Agreement or otherwise, including but not limited to breach or alleged breach by the indemnitee of any representation, warranty, covenant or agreement contained in this Agreement. If a party has actual knowledge, prior to the Closing, of any fact or condition that causes any of the representations or warranties of the other party in this Agreement to become untrue, misleading, inaccurate or incomplete, then such party having actual knowledge shall either (i) deliver written notice thereof to the other party no later than ten (10) business days before the Closing Date (or, if there are fewer than ten (10) business days remaining until the Closing Date, as soon as practicable but in any case prior to the Closing) describing such matter with specificity, and, if a mutually satisfactory resolution of such Indemnified Party. For further certaintymatter is not reached before the Closing Date, only one legal firm may exercise its termination rights under Article 12 hereof, or (ii) be engaged at the expense of the Indemnifying Partydeemed to have waived any right to indemnification under this Article 11 with respect to such matter.
Appears in 1 contract
Sources: Purchase and Sale Agreement (American Skiing Co /Me)
Method of Asserting Claims. All claims for indemnification by any Indemnified Party under this Article VIII shall be asserted and resolved as follows:
(a) If a Party entitled to indemnification pursuant to In the terms hereof (the “Indemnified Party”) intends to seek indemnification under this Article 4 from the other Party (the “Indemnifying Party”), the Indemnified Party shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of event that any claim or action demand for which an Indemnifying Party would be liable to an Indemnified Party hereunder is asserted against or sought to be collected from such Indemnified Party by a third party, promptly following receipt of written notice said Indemnified Party shall, within sixty (60) days of such third party claim or action. The failure of or delay by an Indemnified Party to so demand being made, notify the Indemnifying Party of such claim or demand, specifying the nature of and specific basis for such claim or demand and the amount or the estimated amount thereof to the extent then feasible (as set forth above) the "Claim Notice"). The estimate of Loss contained in the Claim Notice shall not relieve limit the amount of the Indemnifying Party of its indemnification obligations hereunder to Party's ultimate liability under the Indemnified Party, however the liability which the claim. The Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will shall not be obligated to indemnify the Indemnified Party in with respect of) shall be reduced to the extent that any such delay in claim or failure demand if the Indemnified Party fails to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which notify the Indemnifying Party has under its indemnity provided for herein.
thereof in accordance with the provisions of this Agreement within said sixty (b60) day period. The Indemnifying Party, at its sole cost and expense, Party shall have 30 days from the right personal delivery or mailing of the Claim Notice (the "Notice Period") to assume the defence of any claim, action, suit, proceeding or investigation brought against notify the Indemnified Party with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (i) whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release liability of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such action, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional hereunder with respect to those available to such claim or demand is disputed, and (ii) whether or not the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not takendesires, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which shall be at the Indemnifying Party’s expense, to represent the Indemnified Party sole cost and to otherwise participate in the defence of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Party, to defend the Indemnified Party against such claim or demand; provided, however, that any Indemnified Party is hereby authorized prior to and during the Notice Period to file any motion, answer or other pleading which it shall deem necessary or appropriate to protect its interest or those of the Indemnifying Party and not unreasonably prejudicial to the Indemnifying Party. In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that
(b) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder which does not involve a claim or demand being asserted against or sought to be collected from it by a third party, the Indemnified Party shall send a Claim Notice with respect to such claim to the Indemnifying Party. If the Indemnifying Party does not notify the Indemnified Party within the Notice Period that it disputes such claim, the amount of such claim shall be conclusively deemed a liability of the Indemnifying Party hereunder. If the Indemnifying Party has disputed such claim, as provided above, such dispute shall be resolved by arbitration.
Appears in 1 contract
Sources: Agreement and Plan of Exchange (Harbour Capital Corp)
Method of Asserting Claims. The party seeking indemnification (athe "Indemnitee") If will give prompt written notice to the other party or parties (the "Indemnitor") of any Claim which it discovers or of which it receives notice after the Closing and which might give rise to a Party claim by it against Indemnitor under Section 8 hereof, stating the nature, basis and (to the extent known) amount thereof; provided that failure to give prompt notice shall not jeopardize the right of any Indemnitee to indemnification unless such failure shall have materially prejudiced the ability of the Indemnitor to defend such Claim. In case of any Claim or suit by a third party or by any governmental body, or any legal, administrative or arbitration proceeding with respect to which Indemnitor may have liability under the indemnity agreement contained in this Section 8, Indemnitor shall be entitled to indemnification pursuant participate therein, and, to the terms hereof (extent desired by it, to assume the “Indemnified Party”) intends defense thereof, and after notice from Indemnitor to seek indemnification under this Article 4 from Indemnitee of the election so to assume the defense thereof, Indemnitor will not be liable to Indemnitee for any legal or other Party (expenses subsequently incurred by Indemnitee in connection with the “Indemnifying Party”)defense thereof, other than reasonable costs of investigation, unless Indemnitor does not actually assume the Indemnified Party shall give the Indemnifying Party defense thereof following notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party election. Indemnitee and Indemnitor will render to each other such assistance as may reasonably be required of actual knowledge or information as each other in order to the factual insure proper and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of any claim or action by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or delay by an Indemnified Party to so notify the Indemnifying Party (as set forth above) shall not relieve the Indemnifying Party of its indemnification obligations hereunder to the Indemnified Party, however the liability which the Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced to the extent that any such delay in or failure to give notice as herein required prejudices the defence adequate defense of any such action, suit, Claim or proceeding. If the Indemnitor actually assumes the defense of the Indemnitee, investigation or claim, or otherwise results in the Indemnitee will not make any increase in the liability which the Indemnifying Party has under its indemnity provided for herein.
(b) The Indemnifying Party, at its sole cost and expense, shall have the right to assume the defence settlement of any claim, action, suit, proceeding or investigation brought against Claim which might give rise to liability of Indemnitor under the Indemnified Party with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will not, indemnity agreements contained in this Section without the Indemnified Party’s prior written consent (such of Indemnitor, which consent shall not to be unreasonably withheld), settle, compromise, consent and the Indemnitor shall not agree to the entry make any settlement of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of Claim which indemnification may be sought hereunder (whether or would not include the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a unconditional release of the Indemnified Party from all liabilities arising out Indemnitee without the written consent of such actionIndemnitee, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and which consent shall permit them to consult with the employees and counsel (if any) of the Indemnified Partynot be unreasonably withheld.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such action, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which shall be at the Indemnifying Party’s expense, to represent the Indemnified Party and to otherwise participate in the defence of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Party.
Appears in 1 contract
Sources: Purchase Agreement (Spire Corp)
Method of Asserting Claims. (a) All claims for indemnification by the Buyer, the Company and their respective affiliates (each, an "Indemnified Person") pursuant to this Section 7 shall be made first, in accordance with the provisions of the Escrow Agreement, and second (to the extent no additional Escrow Shares are held in escrow), the Shareholders shall jointly and severally indemnify the Indemnified Persons in accordance with the provisions of this Section 7 hereof. Any such payment shall be made promptly following the agreement of the parties as to the amount owing, or promptly following the resolution of any disagreement with respect thereto.
(b) If a Party third party asserts that an Indemnified Person is liable to such third party for a monetary or other obligation which may constitute or result in Damages for which such Indemnified Person may be entitled to indemnification pursuant to this Section 7, and such Indemnified Person reasonably determines that it has a valid business reason to fulfill such obligation (which such reason shall be limited to circumstances where the terms hereof (the “Indemnified Party”) intends to seek indemnification under this Article 4 from the other Party (the “Indemnifying Party”Person believes in its reasonable judgment that such matter is material and urgent), then (i) such Indemnified Person shall be entitled to satisfy such obligation without consent of the Shareholder Representative or any other Shareholder, (ii) such Indemnified Party shall give the Indemnifying Party notice of such Person may make a claim for indemnification promptly following pursuant to this Section 7 in accordance with the receipt or determination by provisions of the Escrow Agreement, and (iii) such Indemnified Person shall be reimbursed, in accordance with the provisions of the Escrow Agreement, for any such Damages for which it is entitled to indemnification pursuant to this Section 7 (subject to the right of the Shareholder Representative to dispute the Indemnified Party Person's entitlement to indemnification under the terms of actual knowledge or information as this Section 7).
(c) The Indemnified Person shall give prompt written notification to the factual and legal basis Shareholder Representative of any claim which is subject to indemnification and, where such claim results from the commencement of any claim action, suit or action by proceeding relating to a third party, promptly following receipt of written notice of such third party claim or action. The failure for which indemnification pursuant to this Section 7 may be sought; provided, however, that no delay on the part of or delay by an the Indemnified Party to so notify Person in notifying the Indemnifying Party (as set forth above) Shareholder Representative shall not relieve the Indemnifying Party Shareholders of its indemnification obligations any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the Shareholder Representative may, upon written notice thereof to the Indemnified PartyPerson, however assume control of the liability which the Indemnifying Party has to the Indemnified Party pursuant to the terms defense of this Article 4 (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced to the extent that any such delay in or failure to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation suit or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for herein.
(b) The Indemnifying Party, at its sole cost and expense, shall have the right to assume the defence of any claim, action, suit, proceeding or investigation brought against the Indemnified Party with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified PartyPerson, provided the Shareholder Representative acknowledges in writing to the Indemnified Person that any damages, fines, costs or other liabilities that may be assessed against the Indemnified Person in connection with such action, suit or proceeding constitute Damages for which the Indemnified Person shall be entitled to indemnification pursuant to this Section 7. If the Shareholder Representative does not so assume control of such defense, the Indemnified Person shall control such defense. The party not controlling such defense may participate therein at its own expense; provided that if the Indemnifying Party will not, without Shareholder Representative assumes control of such defense and the Indemnified Party’s prior written consent (Person reasonably concludes that the indemnifying parties and the Indemnified Person have conflicting interests or different defenses available with respect to such consent not to be unreasonably withheld)action, settlesuit or proceeding, compromise, consent the reasonable fees and expenses of counsel to the entry Indemnified Person shall be considered "Damages" for purposes of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not this Agreement. The party controlling such defense shall keep the Indemnified Party is a other party thereto) unless such settlement, compromise, consent or termination includes a release advised of the Indemnified Party from all liabilities arising out status of such action, suit, proceeding, investigation suit or claimproceeding and the defense thereof and shall consider in good faith recommendations made by the other party with respect thereto. The Indemnified Party will give Person shall not agree to any settlement of such action, suit or proceeding without the Indemnifying Party and its counsel reasonable access prior written consent of the Shareholder Representative, which shall not be unreasonably withheld. The Shareholder Representative shall not agree to all business records and other documents relevant to any settlement of such defence action, suit or settlement, and shall permit them to consult with proceeding without the employees and counsel (if any) prior written consent of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such actionPerson, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which shall not be at the Indemnifying Party’s expense, to represent the Indemnified Party and to otherwise participate in the defence of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Partyunreasonably withheld.
Appears in 1 contract
Sources: Share Purchase Agreement (International Integration Inc)
Method of Asserting Claims. Subject to the time period set forth in Section 11.4 hereof with respect to survival of representations and warranties, the party seeking indemnity (a"Indemnitee") If will give prompt written notice to the party providing indemnity ("Indemnitor") of any Loss which it discovers or of which it receives notice after the Closing and which might give rise to a Party Loss by it against Indemnitor under Section 11 hereof, stating the nature, basis and (to the extent known) amount thereof. In case of any Loss or suit by a third party or by any Governmental Entity, or any legal, administrative or arbitration proceeding with respect to which Indemnitor may have liability under the indemnity agreement contained in this Section 11, Indemnitor shall be entitled to indemnification pursuant participate therein, and, to the terms hereof (extent desired by it or them, to assume the “Indemnified Party”) intends defense thereof, and after notice from Indemnitor to seek indemnification under this Article 4 from Indemnitee of the election so to assume the defense thereof, Indemnitor will not be liable to Indemnitee for any legal or other Party (expenses subsequently incurred by Indemnitee in connection with the “Indemnifying Party”)defense thereof, other than reasonable costs of investigation, unless Indemnitor does not actually assume the Indemnified Party shall give the Indemnifying Party defense thereof following notice of such claim for indemnification promptly following election or unless Indemnitee reasonably determines that the receipt or determination by the Indemnified Party Indemnitors do not have sufficient financial resources to defend such matter. Indemnitee and Indemnitor will render to each other such assistance as may reasonably be required of actual knowledge or information as each other in order to the factual insure proper and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of any claim or action by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or delay by an Indemnified Party to so notify the Indemnifying Party (as set forth above) shall not relieve the Indemnifying Party of its indemnification obligations hereunder to the Indemnified Party, however the liability which the Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced to the extent that any such delay in or failure to give notice as herein required prejudices the defence adequate defense of any such action, suit, Loss or proceeding, investigation or claim, or otherwise results in . Indemnitee will not make any increase in the liability which the Indemnifying Party has under its indemnity provided for herein.
(b) The Indemnifying Party, at its sole cost and expense, shall have the right to assume the defence settlement of any claim, action, suit, proceeding Loss or investigation brought against the Indemnified Party with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment with respect to any Loss which might give rise to liability of an Indemnitor under the indemnity agreements contained in this Section without the written consent of Indemnitor, which consent shall not be unreasonably withheld, unless Indemnitee reasonably determines that the Indemnitors do not have sufficient financial resources to pay the Loss. If Indemnitor shall desire and be able to effect a bona fide compromise or otherwise seek to terminate settlement of any action, such suit, proceedingLoss, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, proceeding and Indemnitee shall unreasonably refuse to consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence compromise or settlement, and shall permit them then Indemnitor's liability under this Section 11 with respect to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such action, suit, Loss or proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available shall be limited to the Indemnified Party that are additional to those available amount so offered in compromise or settlement together with all legal and other expenses which may have been incurred prior to the Indemnifying Party and that in date on which Indemnitee has refused to consent to such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking compromise or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which shall be at the Indemnifying Party’s expense, to represent the Indemnified Party and to otherwise participate in the defence of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Partysettlement.
Appears in 1 contract
Method of Asserting Claims. All Claims for indemnification by any party under this Section 11.2 shall be asserted and resolved as follows:
(ai) If a Party in the event that any Claim or demand in respect of which any party would be entitled to indemnification pursuant hereunder is asserted against such party by a third party (a "THIRD PARTY CLAIM"), said party shall within 75 days thereof notify the indemnifying party of such Claim or demand, specifying the nature of and specific basis for such Claim or demand and the amount or the estimated amount thereof to the terms hereof extent then feasible, which estimate shall not be conclusive of the final amount of such Claim or demand (the “Indemnified Party”) intends "INDEMNITY CLAIM NOTICE"); provided, however, that the failure to seek indemnification under this Article 4 from notify the other Party (the “Indemnifying Party”), the Indemnified Party shall give the Indemnifying Party notice indemnifying party of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of any claim or action by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or delay by an Indemnified Party to so notify the Indemnifying Party (as set forth above) shall indemnity Claim within such 75 day period will not relieve the Indemnifying Party indemnifying party of its indemnification obligations hereunder any liability that it may have to the Indemnified Partyany indemnified party, however the liability which the Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced except to the extent that any such delay in or the indemnifying party is actually materially prejudiced by the indemnifying party's failure to give notice such Indemnity Claim Notice. The indemnifying party shall have 30 days from the personal delivery or mailing of the Indemnity Claim Notice (the "NOTICE PERIOD") to notify the indemnified party (A) whether or not it disputes entitlement of the indemnified party to indemnification hereunder with respect to such Claim or demand; and (B) whether or not it desires at no cost or expense to the indemnified party, to defend the indemnified party against such Claim or demand; provided, however, that any indemnified party is hereby authorized prior to and during the Notice Period to file any motion, answer or other pleading which it shall deem necessary or appropriate to protect its interests or those of the indemnifying party and that are not materially prejudicial to the indemnifying party. In the event that the indemnifying party notifies the indemnified party within the Notice Period that it desires to defend the indemnified party against such Claim or demand and except as herein required prejudices hereinafter provided, the defence of indemnifying party shall have the right to defend by all appropriate proceedings, which proceedings shall be promptly settled or prosecuted by it to a final conclusion. If the indemnified party desires to participate in, but not control, any such action, suit, proceeding, investigation defense or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for herein.
(b) The Indemnifying Party, settlement it may do so at its sole cost and expense. If requested by the indemnifying party, the indemnified party agrees to cooperate with the indemnifying party and its counsel in contesting any Claim or demand which the indemnifying party elects to contest, or, if appropriate and related to the Claim in question, in making any counterclaim against the person asserting the cross complaint against any person. No Claim may be settled without the consent of the indemnifying party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, in connection with a Third Party Claim asserted against both such indemnified party and indemnifying party, if (A) such indemnified party has available to it defenses which are in addition to those available to the indemnifying party; (B) such indemnified party has available to it defenses which are inconsistent with the defenses available to the indemnifying party; or (C) a conflict exists or may reasonably be expected to exist in connection with the representation of both such indemnified party and indemnifying party by the legal counsel chosen by the indemnifying party, such indemnified party shall have the right to assume select its own legal counsel subject to the defence approval of any claim, action, suit, proceeding or investigation brought against the Indemnified Party with such legal counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will notindemnifying party, without the Indemnified Party’s prior written consent (such consent approval not to be unreasonably withheld), settle, compromise, consent . If such indemnified party selects its own legal counsel pursuant to the entry immediately preceding sentence and the underlying Third Party Claim is otherwise subject to the scope of any judgment the indemnification obligations of the indemnifying party pursuant to this Section 11.2, the reasonable fees and expenses of such legal counsel will be included within the indemnification obligations of the indemnifying party; provided, however, that under no circumstances will the indemnifying party be obligated to indemnify such indemnified party against the fees and expenses of more than one legal counsel selected by such indemnified party in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect connection with a single Claim (notwithstanding the number of which indemnification persons against whom the Third Party Claim may be sought hereunder (whether or not asserted). To the Indemnified Party extent a Claim with respect to indemnification of representations and warranties is made within the survival period set forth in Section 11.1, such Claim shall survive until such Claim is resolved pursuant to the provisions of Section 11.2, notwithstanding the expiration of the applicable survival period set forth in Section 11.1. For the avoidance of doubt, any Claim with respect to the Disclosed Contingent Liabilities shall survive until such Claim with respect to the Disclosed Contingent Liabilities shall have been settled and paid, either pursuant to a party thereto) unless full settlement agreement binding on all parties to such settlementDisclosed Contingent Liability, compromise, consent or termination includes including a full release of the Indemnified Party from all liabilities arising out Surviving Corporation, or a final nonappealable judgment is entered. Notwithstanding the foregoing, Parent shall not be (i) required to give notice of such action, suit, proceeding, investigation any Claim with respect to any Disclosed Contingent Liability or claim. The Indemnified Party will give (ii) entitled to make a Claim for indemnification in excess of the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and shall permit them to consult with the employees and counsel (if anyamount listed in Section 11.2(e)(ii) of the Indemnified PartyParent Disclosure Schedules with respect to any Disclosed Contingent Liability set forth therein.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such action, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if In the Indemnified event any indemnified party should have a Claim hereunder which does not involve a Third Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigationClaim, the Indemnified Party has provided written notice of same indemnified party shall send an Indemnity Claim Notice with respect to such claim to the Indemnifying Partyindemnifying party and, if applicable, otherwise comply with the provisions of this Section 11.2. In the event the parties cannot reach an agreement regarding such non-Third Party Claim within 30 days, the parties will submit such dispute to final and binding arbitration held in Dallas, Texas. American Arbitration Association ("AAA") rules relating to commercial arbitration will apply. The parties will jointly select a single arbitrator from an AAA panel. If they cannot agree on an arbitrator, they will both select an arbitrator and the Indemnifying Party has two arbitrators so selected will pick the arbitrator who will decide the dispute. The arbitrator will not rectified the situation within a reasonable time; then the Indemnified Party shall have the right authority to retain separate counsel, the reasonable costs of which shall be at the Indemnifying Party’s expense, to represent the Indemnified Party award punitive or consequential damages. Arbitration awards are not appealable and to otherwise participate in the defence of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at enforced through any court of competent jurisdiction. The arbitrator must apply Delaware law and has exclusive authority to resolve any dispute relating to the expense interpretations, applicability, or formation of the Indemnifying Partythis Agreement.
Appears in 1 contract
Method of Asserting Claims. The party claiming indemnification hereunder (athe "Indemnitee") If will give prompt written notice ("Notice of Claim") to the party from whom such indemnification is sought (the "Indemnitor") of any claim ("Claim") which it discovers or of which it receives notice after the Closing and which might give rise to a Party Claim by it against the Indemnitor under Section 8 hereof, stating the nature, basis and (to the extent known or reasonably estimated) amount thereof; provided that failure to give prompt notice shall not jeopardize the right of any Indemnitee to indemnification unless such failure shall have materially prejudiced the ability of the Indemnitor to defend or minimize the amount of such Claim. In the case of any Claim or suit by a third party or by any governmental body, or any legal, administrative or arbitration proceeding with respect to which Indemnitor may have liability under this Section 8, Indemnitor shall be entitled to indemnification pursuant participate therein, and to the terms hereof extent desired by it or him to assume the defense thereof, if Indemnitor gives written notice of its election to assume the defense thereof within sixty (60) days of its receipt of the “Indemnified Party”) intends Notice of Claim. If Indemnitor gives such notice to seek indemnification under this Article 4 from Indemnitee of the other Party (election to assume the “Indemnifying Party”)defense thereof, the Indemnified Party shall give Indemnitor will not be liable to the Indemnifying Party Indemnitee for any legal or other expenses incurred by the Indemnitee in connection with the defense thereof, following the receipt of such notice provided for above, unless Indemnitor does not actually assume the defense thereof following notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of any claim or action by a third party, promptly following receipt of written notice of such third party claim or actionelection. The failure parties will render to each other such assistance as may reasonably be required of or delay by an Indemnified Party each other at Indemnitor's expense, in order to so notify the Indemnifying Party (as set forth above) shall not relieve the Indemnifying Party of its indemnification obligations hereunder to the Indemnified Party, however the liability which the Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (insure proper and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced to the extent that any such delay in or failure to give notice as herein required prejudices the defence adequate defense of any such action, suit, Claim or proceeding. If Indemnitor actually assumes the defense of the Indemnitee, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for herein.
(b) The Indemnifying Party, at its sole cost and expense, Indemnitor shall have sole control of the right to assume defense and negotiations for the defence settlement or compromise of such Claim, the Indemnitee will not make any settlement of any claim, action, suit, proceeding or investigation brought against Claim which might give rise to liability of any of the Indemnified Party with counsel designated by Indemnitor under the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will not, indemnity agreements contained in this Section without the Indemnified Party’s prior written consent (such of Indemnitor, and the Indemnitor shall not agree to make any settlement of any Claim which would not include the unconditional release of the Indemnitee without the written consent of Indemnitee, which consent shall not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment in delayed or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Partyconditioned.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such action, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which shall be at the Indemnifying Party’s expense, to represent the Indemnified Party and to otherwise participate in the defence of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Party.
Appears in 1 contract
Sources: Asset Purchase Agreement (Amcol International Corp)
Method of Asserting Claims. (a) All claims for indemnification by an Indemnified Person pursuant to this Article VI shall be made in accordance with the provisions of this Section 6.2 and the Escrow Agreement.
(b) If a Party third party asserts that an Indemnified Person is liable to such third party for a monetary or other obligation which may constitute or result in Damages for which such Indemnified Person may be entitled to indemnification pursuant to the terms hereof Section 6.1, and such Indemnified Person reasonably determines that it has a valid business reason to fulfill such obligation, then (the “i) such Indemnified Party”) intends Person shall be entitled to seek indemnification under this Article 4 satisfy such obligation, without prior notice to or consent from the other Party Company Stockholders or the Indemnification Representative, (the “Indemnifying Party”), the ii) such Indemnified Party shall give the Indemnifying Party notice of such Person may make a claim for indemnification promptly following pursuant to this Article VI in accordance with the receipt or determination by provisions of the Escrow Agreement, and (iii) such Indemnified Person shall be reimbursed, in accordance with the provisions of the Escrow Agreement, for any such Damages for which it is entitled to indemnification pursuant to this Article VI (subject to the right of the Indemnification Representative to dispute the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject Person's entitlement to indemnification and, where such claim results from the commencement of any claim or action by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or delay by an Indemnified Party to so notify the Indemnifying Party (as set forth above) shall not relieve the Indemnifying Party of its indemnification obligations hereunder to the Indemnified Party, however the liability which the Indemnifying Party has to the Indemnified Party pursuant to under the terms of this Article 4 VI).
(and c) The Indemnified Person shall give prompt written notification to the Indemnification Representative of the commencement of any action, suit or proceeding relating to a third party claim for which indemnification pursuant to Section 6.1 may be sought; provided, however, that no delay on the Indemnifying Party will be obligated to indemnify part of the Indemnified Party Person in respect of) notifying the Indemnification Representative shall be reduced relieve the Company Stockholders of any liability or obligation hereunder except to the extent that any such delay in or failure to give notice as herein required prejudices the defence of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the Indemnification Representative may, upon written notice thereof to the Indemnified Person, assume control of the defense of such action, suit, proceeding, investigation suit or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for herein.
(b) The Indemnifying Party, at its sole cost and expense, shall have the right to assume the defence of any claim, action, suit, proceeding or investigation brought against the Indemnified Party with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; Person, provided the Indemnification Representative acknowledges in writing to the Indemnified Person, on behalf of the Company Stockholders, that the Indemnifying Party will not, without Company Stockholders shall indemnify the Indemnified Party’s prior written consent (such consent not Person with respect to be unreasonably withheld), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out elements of such action, suitsuit or proceeding and any Damages, fines, costs or other liabilities that may be assessed against the Indemnified Person in connection with such action, suit or proceeding. If the Indemnification Representative does not so assume control of such defense, the Indemnified Person shall control such defense. The party not controlling such defense may participate therein at its own expense; provided that if the Indemnification Representative assumes control of such defense and the Indemnified Person reasonably concludes that the indemnifying parties and the Indemnified Person have conflicting interests or different defenses available with respect to such action, suit or proceeding, investigation the reasonable fees and expenses of counsel to the Indemnified Person shall be considered "Damages" for purposes of this Agreement. The party controlling such defense shall keep the other party advised of the status of such action, suit or claimproceeding and the defense thereof and shall consider in good faith recommendations made by the other party with respect thereto. The Indemnified Party will give Person shall not agree to any settlement or the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and shall permit them to consult with the employees and counsel (if any) entry of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants a judgment in any such action, suitsuit or proceeding without the prior written consent of the Indemnification Representative, which consent shall not be unreasonably withheld or delayed. The Indemnification Representative shall not agree to any settlement or the entry of a judgment in any action, suit or proceeding or investigation include both without the prior written consent of the Indemnified Party and Person, which shall not be unreasonably withheld (it being understood that it is reasonable to withhold such consent if, among other things, the Indemnifying Party, and settlement or the entry of a judgment (i) lacks a complete release of the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
Person for all liability with respect thereto or (ii) if imposes any liability or obligation on the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which shall be at the Indemnifying Party’s expense, to represent the Indemnified Party and to otherwise participate in the defence of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying PartyPerson).
Appears in 1 contract
Method of Asserting Claims. (a) If a Party entitled to The party seeking indemnification pursuant to the terms hereof (the “Indemnified PartyIndemnitee”) intends will give prompt written notice to seek indemnification under this Article 4 from the other Party party or parties (the “Indemnifying PartyIndemnitor”)) of any Claim which it discovers or of which it receives notice after the Closing and which might give rise to a claim by it against Indemnitor under Section 9 hereof, stating the nature, basis and (to the extent known) amount thereof; provided that failure to give prompt notice shall not jeopardize the right of any Indemnitee to indemnification except to the extent such failure shall have materially prejudiced the ability of the Indemnitor to defend such Claim. Subject to the Indemnitor’s right to defend in good faith third party claims as hereinafter provided, the Indemnified Party Indemnitor shall give satisfy its obligations and this Article 9 within thirty (30) days after receipt of written notice thereof from the Indemnifying Party Indemnitee.
(b) In case of any Claim or suit by a third party or by any Governmental Body, or any legal, administrative or arbitration proceeding with respect to which Indemnitor may have liability under the indemnity agreement contained in this Section 9, Indemnitor shall be entitled to participate therein, and, to the extent desired by it, to assume the defense thereof, and after notice from Indemnitor to Indemnitee of the election so to assume the defense thereof, Indemnitor will not be liable to Indemnitee for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense thereof, other than reasonable costs of investigation, unless Indemnitor does not actually assume the defense thereof following notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party election. Indemnitee and Indemnitor will render to each other such assistance as may reasonably be required of actual knowledge or information as each other in order to the factual insure proper and legal basis adequate defense of any claim such suit, Claim or proceeding. If the Indemnitor actually assumes the defense of the Indemnitee, the Indemnitee will not make any settlement of any Claim which is subject might give rise to indemnification andliability of Indemnitor under the indemnity agreements contained in this Section without the written consent of Indemnitor, where such claim results from which consent shall not be unreasonably withheld, and the commencement Indemnitor shall not agree to make any settlement of any Claim which would not include the unconditional release of the Indemnitee without the written consent of Indemnitee, which consent shall not be unreasonably withheld.
(c) If the Indemnitee shall notify the Indemnitor of any claim or action demand pursuant to Section 9.3(a), and if such claim or demand relates to a claim or demand asserted by a third partyparty against the Indemnitee which the Indemnitor acknowledges is a claim or demand for which it must indemnify or hold harmless the Indemnitee under Sections 9.1 or 9.2, the Indemnitor shall have the right to employ counsel acceptable to the Indemnitee to defend any such claim or demand asserted against the Indemnitee. The Indemnitee shall have the right to participate in the defense of any such claim or demand. The Indemnitor shall notify the Indemnitee in writing, as promptly following receipt as possible (but in any case before the due date for the answer or response to a claim) after the date of written the notice of claim given by the Indemnitee to the Indemnitor under Section 9.3(a) of its election to defend in good faith any such third party claim or actiondemand. So long as the Indemnitor is defending in good faith any such claim or demand asserted by a third party against the Indemnitee, the Indemnitee shall not settle or compromise such claim or demand. The failure of or delay by an Indemnified Party to so notify the Indemnifying Party (as set forth above) Indemnitee shall not relieve the Indemnifying Party of its indemnification obligations hereunder make available to the Indemnified Party, however the liability which the Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (Indemnitor or its agents all records and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced to the extent that any such delay in or failure to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase other materials in the liability which the Indemnifying Party has under Indemnitee’s possession reasonably required by it for its indemnity provided for herein.
(b) The Indemnifying Party, at its sole cost and expense, shall have the right to assume the defence of use in contesting any claim, action, suit, proceeding third party claim or investigation brought against the Indemnified Party with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether demand. Whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give Indemnitor elects to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants in defend any such actionclaim or demand, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party Indemnitee shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps no obligations to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which shall be at the Indemnifying Party’s expense, to represent the Indemnified Party and to otherwise participate in the defence of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Partydo so.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Fisher Communications Inc)
Method of Asserting Claims. (a) If a Party entitled to The party seeking indemnification pursuant to the terms hereof (the “Indemnified PartyIndemnitee”) intends will give prompt written notice to seek indemnification the other party or parties (the “Indemnitor”) of any Claim which it discovers or of which it receives notice after the Closing and which might give rise to a claim by it against Indemnitor under this Article 4 from 9, stating the other Party nature, basis and (to the “Indemnifying Party”)extent known) amount thereof; provided that failure to give prompt notice shall not jeopardize the right of any Indemnitee to indemnification, except to the extent that such failure shall have materially prejudiced the ability of the Indemnitor to defend such Claim. Subject to Indemnitor’s right to defend in good faith third party claims as hereinafter provided, the Indemnified Party Indemnitor shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of any claim or action by a third party, promptly following satisfy its obligations under this Article 9 within thirty (30) days after receipt of written notice of such third party claim or action. The failure of or delay by an Indemnified Party to so notify thereof from the Indemnifying Party (as set forth above) shall not relieve the Indemnifying Party of its indemnification obligations hereunder to the Indemnified Party, however the liability which the Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced to the extent that any such delay in or failure to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for hereinIndemnitee.
(b) The Indemnifying PartyIn case of any Claim or suit by a third party or by any governmental body, at its sole cost or any legal, administrative or arbitration proceeding with respect to which Indemnitor may have liability under the indemnity agreement contained in this Article 9, and expensewhich Indemnitor acknowledges is a Claim or demand for which it must indemnify or hold harmless Indemnitee under Section 9.1 or 9.2, or which may give rise to Buyer’s setoff rights under Section 9.4, Indemnitor shall have be entitled to participate therein and, to the right extent desired by it, to assume the defence defense thereof and to employ counsel reasonably acceptable to Indemnitee to defend any such Claim or demand asserted against the Indemnitee. After notice from Indemnitor to Indemnitee of the election so to assume the defense thereof, Indemnitor will not be liable to Indemnitee for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense thereof, other than reasonable costs of investigation, unless Indemnitor does not actually assume the defense thereof following notice of such election. Indemnitee and Indemnitor will render to each other such assistance as may reasonably be required of each other in order to insure proper and adequate defense of any claim, action, such suit, proceeding Claim or investigation brought against proceeding. If Indemnitor actually assumes the Indemnified Party with counsel designated by defense of Indemnitee, Indemnitee will not make any settlement of any Claim which might give rise to liability of Indemnitor under the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will not, indemnity agreements contained in this Section without the Indemnified Party’s prior written consent (such of Indemnitor, which consent shall not to be unreasonably withheld), settleif such settlement includes the unconditional release of Indemnitor, compromise, consent and Indemnitor shall not agree to the entry make any settlement of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of Claim which indemnification may be sought hereunder (whether or would not include the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a unconditional release of Indemnitee without the Indemnified Party from all liabilities arising out written consent of such actionIndemnitee, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and which consent shall permit them to consult with the employees and counsel (if any) of the Indemnified Partynot be unreasonably withheld.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such action, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which shall be at the Indemnifying Party’s expense, to represent the Indemnified Party and to otherwise participate in the defence of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Party.
Appears in 1 contract
Method of Asserting Claims. (a) If In the event that any claim or demand for which an Indemnifying Party would be liable to an Indemnified Party hereunder is asserted against or sought to be collected from an Indemnified Party by a third party (a "Third Party entitled Claim") or an Indemnified Party seeks indemnification from an ------------------ Indemnifying Party in connection with any other type of claim for which indemnity may be sought hereunder (referred to indemnification pursuant to the terms hereof (the “Indemnified Party”) intends to seek indemnification under this Article 4 from the other herein as a "Non Third Party (the “Indemnifying Party”Claim"), the Indemnified Party shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as use reasonable efforts to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of any claim or action by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or delay by an Indemnified Party to so notify the Indemnifying Party in writing of such Third Party Claim or Non Third Party Claim, specifying the nature of such Third Party Claim or Non Third Party Claim arising hereunder and the amount or the estimated amount thereof to the extent then feasible (as set forth above) which estimate shall not relieve be conclusive of the final amount of such Third Party Claim or Non Third Party Claim) (the "Claim Notice"). The Indemnifying Party shall have twenty calendar days ------------- (or such earlier period of its indemnification obligations hereunder time as may be required for the filing of responsive pleadings to any legal action instituted with respect to the Third Party Claim or Non Third Party Claim or required due to contractual deadlines imposed upon the Indemnified Party by the contract in dispute but in any event, not less than 10 days) from the receipt of the Claim Notice (the "Response Notice Period") to notify the Indemnified Party, however the (A) whether ---------------------- or not it disputes its liability which the Indemnifying Party has to the Indemnified Party pursuant hereunder with respect to the terms of this Article 4 such Third Party Claim or Non Third Party Claim and (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect ofB) shall be reduced to the extent that notwithstanding any such delay in dispute, whether or failure to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for herein.
(b) The Indemnifying Partynot it will defend, at its sole cost and expense, shall have the right to assume the defence of any claim, action, suit, proceeding or investigation brought against the Indemnified Party against such Third Party Claim. No failure by an Indemnified Party to notify the Indemnifying Party of the existence or assertion of a claim for which indemnification may be sought shall constitute a defense to or waiver of such claim for indemnification except to the extent the Indemnifying Party may be able to prove that it has been materially prejudiced by such failure or delay.
(b) If the Indemnifying Party disputes its liability with counsel designated respect to such Third Party Claim or Non Third Party Claim or the amount thereof (whether or not the Indemnifying Party desires to defend the Indemnified Party against such Third Party Claim as provided in paragraphs (c) and (d) below), such dispute shall be resolved in accordance with Section 8.5 ----------- hereof. Pending the resolution of any dispute by the Indemnifying Party of its liability with respect to any Third Party Claim, such Third Party Claim shall not be settled without the prior written consent of the Indemnified Party and the Indemnifying Party, which consent shall not be unreasonably withheld or delayed.
(c) In the event that the Indemnifying Party notifies the Indemnified Party within the Response Notice Period that it will defend the Indemnified Party against a Third Party Claim, then the Indemnifying Party shall assume the defense thereof with counsel reasonably satisfactory acceptable to the Indemnified Party, and the Indemnified Party shall cooperate in all reasonable respects in such defense, including without limitation in making any appropriate counterclaim against the person asserting the Third Party Claim or any appropriate cross-complaint against any person (unless such counterclaim or cross-complaint would be against any other entity with which the Indemnified Party has ongoing business relations and would have a significant likelihood in the good faith judgment of the Indemnified Party of damaging such business relationships); provided that provided, however, the Indemnifying Party will shall not, without the Indemnified Party’s prior written consent (such of the Indemnified Party which consent shall not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment against the Indemnified Party or enter into any settlement or compromise which does not include, as an unconditional term thereof, the giving by the claimant or plaintiff to the Indemnified Party of a release, in or otherwise seek form and substance reasonably satisfactory to terminate any actionthe Indemnified Party, suit, proceeding, investigation or claim from all liability in respect of which indemnification may be sought hereunder (whether or not the such Third Party Claim. If any Indemnified Party is a party thereto) unless desires to participate in, but not control, any such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence defense or settlement, it may do so at its sole cost and shall permit them to consult with expense. If, in the employees and counsel (if any) reasonable opinion of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants in , any such action, suit, proceeding Third Party Claim or investigation include both the litigation or resolution of any such Third Party Claim involves an issue or matter which could reasonably be expected to have a material adverse effect on the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counselcontrol the defense or settlement of any such Third Party Claim at its cost and expense, the reasonable costs of which and such legal fees and expenses shall be at included as part of the indemnification obligation of the Indemnifying Party’s expense, to represent Party hereunder. If the Indemnified Party and should elect to otherwise exercise such right, the Indemnifying Party shall have the right to participate in in, but not control, the defence defense or settlement of such claimThird Party Claim at its sole cost and expense.
(d) If the Indemnifying Party elects not to defend the Indemnified Party against such Third Party Claim, actionwhether by not giving the Indemnified Party timely notice within the Response Notice Period as provided above or otherwise, suitthen the Indemnified Party shall, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification hereunder), have the right to defend, settle or compromise any such Third Party Claim with counsel of its own choosing. In the event the Indemnified Party proposes to settle a Third Party Claim, the Indemnified Party shall deliver to the Indemnifying Party written notice of the proposed settlement of the Third Party Claim, which the Indemnifying Party may reject in its reasonable judgment within thirty days of receipt of such notice. In the event the Indemnified Party settles such Third Party Claim over the objection of Indemnifying Party, dispute over such settlement shall be resolved as provided in Section 8.5 hereof. -----------
(e) In the event an Indemnified Party has a claim for indemnification against the Indemnifying Party hereunder with respect to a Non Third Party Claim, the Indemnified Party shall send a Claim Notice with respect to such claim to the Indemnifying Party. If the Indemnifying Party disputes its liability with respect to such claim or demand, such dispute shall be resolved in accordance with Section 8.5 hereof; if the Indemnifying Party ----------- accepts or agrees with such claim or does not notify the Indemnified Party within the Response Notice Period that it disputes such claim, the amount of such claim shall be conclusively deemed a liability of the Indemnifying Party hereunder.
Appears in 1 contract
Method of Asserting Claims. (ai) If an Indemnified Person has incurred or suffered Damages for which it is entitled to indemnification under this Section 10, such Indemnified Person shall, prior to the expiration of the representation, warranty, covenant or agreement to which such claim relates, give written notice of such claim (a Party “Claim Notice”) to the Stockholder in question of such claim if made pursuant to Section 10(a)(i) hereof and otherwise to the Stockholders’ Representative. Each Claim Notice shall state the amount of claimed Damages (the “Claimed Amount”), if known, and the basis for such claim.
(ii) Within 20 days after delivery of a Claim Notice, either the Stockholder or the Stockholders’ Representative, as the case may be, shall provide to the Indemnified Person a written response (the “Response Notice”) in which he, she or it shall: (A) agree that all of the Claimed Amount is owed to the Indemnified Person, (B) agree that part, but not all, of the Claimed Amount (the “Agreed Amount”) is owed to the Indemnified Person or (iii) contest that any of the Claimed Amount is owed to the Indemnified Person. The Stockholder or the Stockholders’ Representative may contest the payment of all or a portion of the Claimed Amount only based upon a good faith belief that all or such portion of the Claimed Amount does not constitute Damages for which the Indemnified Person is entitled to indemnification under this Section 10 or if the Buyer fails to provide sufficient information to the Stockholder or Stockholders’ Representative to make a determination. If no Response Notice is delivered by the Stockholder or the Stockholders’ Representative within such 20-day period, the Stockholders shall be deemed to have agreed that all of the Claimed Amount is owed to the Indemnified Person.
(iii) If the Stockholder or the Stockholders’ Representative in the Response Notice agrees (or is deemed to have agreed) that all of the Claimed Amount is owed to the Indemnified Person, such Stockholder shall promptly pay to the Indemnified Person an amount equal to the Claimed Amount subject to Sections 10(d) and 10(e). If the Stockholder or the Stockholders’ Representative in the Response Notice agrees that part, but not all, of the Claimed Amount is owed to the Indemnified Person, such Stockholder shall promptly pay to the Indemnified Person an amount equal to the Agreed Amount set forth in such Response Notice subject to Sections 10(d) and 10(e). Acceptance by the Buyer of part payment of any Claimed Amount shall be without prejudice to the Buyer’s right to claim the balance of any such Claimed Amount. Notwithstanding the foregoing, the Buyer agrees that it shall first satisfy all or any portion of any obligation of such Stockholder under this subsection (b) by making a claim against the Escrowed Funds pursuant to the Escrow Agreement.
(iv) If the Stockholder or Stockholders’ Representative in the Response Notice contests the release of all or part of the Claimed Amount (the “Contested Amount”), the matter shall be settled by binding arbitration in Fairfax, Virginia. All claims shall be settled by three arbitrators in accordance with the Commercial Arbitration Rules then in effect of the American Arbitration Association (“AAA Rules”). Discovery relating to such claims shall be conducted pursuant to the rules of the applicable U.S. federal rules relating to discovery. The Stockholder or the Stockholders’ Representative, as the case may be, and the Indemnified Person shall each designate one arbitrator within 15 days of the delivery of such Stockholder’s or the Stockholders’ Representative’s Response Notice contesting the Claimed Amount. Such Stockholder or the Stockholders’ Representative and the Indemnified Person shall cause such designated arbitrators mutually to agree upon and designate a third arbitrator; provided, however, that (A) failing such agreement within 45 days of delivery of such Stockholder’s or the Stockholders’ Representative’s Response Notice, the third arbitrator shall be appointed in accordance with the AAA Rules and (B) if either such Stockholder or the Stockholders’ Representative or the Indemnified Person fail to timely designate an arbitrator, the dispute shall be resolved by the one arbitrator timely designated. Such Stockholder or the Stockholders’ Representative and the Indemnified Person shall pay the fees and expenses of their respectively designated arbitrators and shall bear equally the fees and expenses of the third arbitrator. Such Stockholder or the Stockholders’ Representative and the Indemnified Person shall cause the arbitrators to decide the matter to be arbitrated pursuant hereto within 60 days after the appointment of the last arbitrator. The arbitrators’ decision shall relate solely to whether the Indemnified Person is entitled to receive the Contested Amount (or a portion thereof) pursuant to the applicable terms of this Agreement. The final decision of the arbitrator, or a majority of the arbitrators in the case of three arbitrators, shall be furnished to the such Stockholder or the Stockholders’ Representative and the Indemnified Person in writing, shall consist of findings of fact and conclusions of law as if it were rendered by a court of competent jurisdiction in Fairfax, Virginia, shall constitute a conclusive determination of the issue in question, binding upon such Stockholder or the Stockholders’ Representative, and the Indemnified Person, and shall not be contested by any of them. Such decision may be used in a court of law only for the purpose of seeking enforcement of the arbitrators’ award.
(v) The Indemnified Person shall give prompt written notification to the Stockholders’ Representative of the commencement of any action, suit or proceeding relating to a third party claim for which indemnification pursuant to this Section may be sought; provided, however, that no delay on the part of the Indemnified Person in notifying the Stockholders’ Representative shall relieve the Stockholders of any liability for Damages hereunder except to the extent of any Damage or material prejudice caused by or arising out of such delay. Within 20 days after delivery of such notification, the Stockholders’ Representative may, upon written notice thereof to the Indemnified Person, assume control of the defense of such action, suit or proceeding with counsel reasonably satisfactory to the Indemnified Person, provided (A) the Stockholders’ Representative acknowledges in writing to the Indemnified Person, on behalf of the Stockholders, that any damages, fines, costs or other liabilities that may be assessed against the Indemnified Person in connection with such action, suit or proceeding constitute Damages for which the Indemnified Person shall be entitled to indemnification pursuant to this Section 10, and (B) an adverse resolution of the terms hereof (third party’s claim would not have a material adverse effect on the “goodwill or the reputation of the Indemnified Party”) intends to seek indemnification under this Article 4 from Person or the other Party (business, operations or future conduct of the “Indemnifying Party”)Indemnified Person. If the Stockholders’ Representative does not so assume control of such defense, the Indemnified Party Person shall give control such defense. The party not controlling such defense may participate therein at its own expense; provided that if the Indemnifying Party notice Stockholders’ Representative assumes control of such defense and the Indemnified Person reasonably concludes that the indemnifying parties and the Indemnified Person have conflicting interests or different defenses available with respect to such action, suit or proceeding, the reasonable fees and expenses of counsel to the Indemnified Person shall be considered “Damages” for purposes of this Agreement. The party controlling such defense shall keep the other party advised of the status of such action, suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the other party with respect thereto. Except as provided in Section 10(b)(vi) hereof, the Indemnified Person shall not agree to any settlement of such action, suit or proceeding without the prior written consent of the Stockholders’ Representative, which shall not be unreasonably withheld, conditioned or delayed. The Stockholders’ Representative shall not agree to any settlement of or the entry of a judgment in any action, suit or proceeding without the prior written consent of the Indemnified Person, which shall not be unreasonably withheld, conditioned or delayed (it being understood that it is reasonable to withhold, condition or delay such consent if, among other things, the settlement or the entry of a judgment (Y) lacks a complete release of the Indemnified Person for all liability with respect thereto or (Z) imposes any liability or obligation on the Indemnified Person).
(vi) If a third party asserts that an Indemnified Person is liable to such third party for a monetary or other obligation which may constitute or result in Damages for which such Indemnified Person may be entitled to indemnification pursuant to this Section 10, and such Indemnified Person reasonably determines that it has a valid business reason to fulfill such obligation, then (A) such Indemnified Person shall be entitled to satisfy such obligation, without prior notice to or consent from the Stockholders’ Representative, (B) such Indemnified Person may make a claim for indemnification promptly following pursuant to this Section 10 and (C) such Indemnified Person shall be entitled to make a claim against the receipt or determination by Escrowed Funds pursuant to the Escrow Agreement or, if such Escrowed Funds are insufficient, shall be reimbursed for any such Damages for which it is entitled to indemnification pursuant to this Section 10 (subject to the right of the Stockholders’ Representative to dispute the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject Person’s entitlement to indemnification and, where such claim results from the commencement of any claim or action by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or delay by an Indemnified Party to so notify the Indemnifying Party (as set forth above) shall not relieve the Indemnifying Party of its indemnification obligations hereunder to the Indemnified Party, however the liability which the Indemnifying Party has to the Indemnified Party pursuant to under the terms of this Article 4 (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced to the extent that any such delay in or failure to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for hereinSection 10).
(bvii) The Indemnifying PartyWithout limiting the rights of the Parties under Section 10(b)(v), at its sole cost in the event of any third party claim of infringement of Intellectual Property for which indemnification pursuant to this Section may be sought in connection with a breach, or alleged breach, of any representation or warranty contained in Section 4(k) (Intellectual Property), the Buyer shall, and expenseshall cause any Indemnified Person to, shall have use commercially reasonable efforts to mitigate the amount of Damages that may arise from such infringement or alleged infringement, including, without limitation, by attempting, as appropriate, to (A) modify the applicable Intellectual Property so that it becomes non-infringing, and/or (B) procure from the applicable third party the right to assume continue using the defence of any claimapplicable Intellectual Property on commercially reasonable terms, action, suit, proceeding or investigation brought against the Indemnified Party with counsel designated such as by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is entering into a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such action, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which shall be at the Indemnifying Party’s expense, to represent the Indemnified Party and to otherwise participate in the defence of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Party.licensing arrangement..
Appears in 1 contract
Sources: Stock Purchase Agreement (American Management Systems Inc)
Method of Asserting Claims. (a) All claims for indemnification ("Claims") by a Buyer Indemnified Person or a Seller Indemnified Person (collectively, the "Indemnified Persons") pursuant to this Article VII shall be made in accordance with the provisions of this Agreement, Schedule 7.2 hereto (with respect to Claims by Seller ------------ Indemnified Persons) ("Schedule 7.2") and the Escrow Agreement.
(b) If a Party third party asserts that an Indemnified Person is liable to such third party for a monetary or other obligation which may constitute or result in Damages for which such Indemnified Person may be entitled to indemnification pursuant to this Article VII, and such Indemnified Person reasonably determines that it has a valid business reason to fulfill such obligation, then (i) such Indemnified Person shall be entitled to satisfy such obligation, without prior notice to or consent from the terms hereof Indemnification Representative (with respect to Claims of Buyer Indemnified Persons) or the “Buyer (with respect to Claims of Seller Indemnified Party”Persons), (ii) intends such Indemnified Person may make a Claim for indemnification pursuant to seek this Article VII in accordance with the provisions of the Escrow Agreement (if applicable), this Article VII and Schedule 7.2 (if applicable), and (iii) such Indemnified Person shall be reimbursed in accordance with the provisions of the Escrow Agreement (if applicable), this Article VII and Schedule 7.2 (if applicable), for any such Damages for which it is entitled to indemnification pursuant to this Article VII (subject to the right of the Indemnification Representative or the Buyer, as the case may be, to dispute the Indemnified Person's entitlement to indemnification under this Article 4 from the other Party (the “Indemnifying Party”), the Indemnified Party shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of any claim or action by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or delay by an Indemnified Party to so notify the Indemnifying Party (as set forth above) shall not relieve the Indemnifying Party of its indemnification obligations hereunder to the Indemnified Party, however the liability which the Indemnifying Party has to the Indemnified Party pursuant to the terms of the Escrow Agreement (if applicable), this Article 4 (VII and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced to the extent that any such delay in or failure to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for herein.
(b) The Indemnifying Party, at its sole cost and expense, shall have the right to assume the defence of any claim, action, suit, proceeding or investigation brought against the Indemnified Party with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and shall permit them to consult with the employees and counsel Schedule 7.2 (if any) of the Indemnified Partyapplicable).
(c) Notwithstanding The Indemnified Person shall give prompt written notification to the foregoing:
Indemnification Representative or the Buyer, as the case may be, of the commencement of any action, suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VII may be sought; provided, however, that no delay on the part of the Indemnified Person in notifying the Indemnification Representative or the Buyer, as the case may be, shall relieve the Stockholders or the Buyer, as the case may be, of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within thirty (i30) if days after delivery of such notification, the defendants in any Indemnification Representative or the Buyer, as the case may be, may, upon written notice thereof to the Indemnified Person, assume control of the defense of such action, suitsuit or proceeding provided the Indemnification Representative or the Buyer, proceeding or investigation include both as the case may be, acknowledges in writing to the Indemnified Party and Person that any damages, fines, costs or other liabilities that may be assessed against the Indemnifying PartyIndemnified Person in connection with such action, suit or proceeding constitute Damages for which the Indemnified Person shall be entitled to indemnification pursuant to this Article VII. If the Indemnification Representative or the Buyer, as the case may be, does not so assume control of such defense, the Indemnified Person shall control such defense. The party not controlling such defense may participate therein at its own expense; provided that if the Indemnification Representative or the Buyer, as the case may be, assumes control of such defense and the Indemnified Party is advised by Person reasonably concludes that the indemnifying parties and the Indemnified Person have conflicting interests or different defenses available with respect to such action, suit or proceeding, the reasonable fees and expenses of counsel that there are legal defences available to the Indemnified Party that are additional Person shall be considered "Damages" for purposes of this Agreement. The party controlling such defense shall keep the other party advised of the status of such action, suit or proceeding and the defense thereof. The Indemnified Person shall not agree to those available any settlement of such action, suit or proceeding without the prior written consent of the Indemnification Representative or the Buyer, as the case may be, which shall not be unreasonably withheld. The Indemnification Representative or the Buyer, as the case may be, shall not agree to any settlement of such action, suit or proceeding without the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if prior written consent of the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not takenPerson, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which shall not be at the Indemnifying Party’s expense, to represent the Indemnified Party and to otherwise participate in the defence of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Partyunreasonably withheld.
Appears in 1 contract
Sources: Merger Agreement (Sciquest Com Inc)
Method of Asserting Claims. All claims by any Indemnified Party under Section 8 of this Agreement shall be asserted and resolved as follows:
(a) If In the event that (x) any claim, demand or Proceeding is asserted or instituted by any Person other than the parties hereto which could give rise to Damages for which an Indemnifying Party would be liable to an Indemnified Party hereunder (such claim, demand or Proceeding, a "Third Party entitled Claim") or (y) any Indemnified Party hereunder shall have a claim to indemnification pursuant to the terms hereof be indemnified by any Indemnifying Party hereunder which does not involve a Third Party Claim (the “Indemnified Party”) intends to seek indemnification under this Article 4 from the other Party (the “Indemnifying Party”such claim, a "Direct Claim"), the Indemnified Party shall give as promptly as possible send to the Indemnifying Party a written notice specifying the nature of such claim for indemnification promptly following or demand and the receipt amount or determination by estimated amount (which estimate shall not be conclusive of the final amount of such claim and demand) (a "Claim Notice"); provided, however, that any failure to give such notice will not waive any rights of the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of any claim or action by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or delay by an Indemnified Party to so notify the Indemnifying Party (as set forth above) shall not relieve the Indemnifying Party of its indemnification obligations hereunder to the Indemnified Party, however the liability which the Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced except to the extent that any such delay in or failure to give notice as herein required prejudices the defence rights of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for hereinare actually prejudiced.
(b) The In the event of a Third Party Claim, the Indemnifying Party shall be entitled to participate therein and, if it so desires, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Party and, after notice from the Indemnifying Party to the Indemnified Party of its election to assume the defense thereof, except as provided below, the Indemnifying Party shall not be liable to such Indemnified Party under Section 8 of this Agreement for any fees of other counsel or any other expenses, in each case subsequently incurred by such Indemnified Party in connection with the defense thereof, other than reasonable costs of investigation. Notwithstanding an Indemnifying Party's election to assume the defense of a claim, at its sole cost and expense, the Indemnified Party shall have the right to assume employ separate counsel and to participate in the defence defense of any such claim, actionand the Indemnifying Party shall bear the reasonable fees, suit, proceeding or investigation brought against costs and expenses of such separate counsel if: (i) the Indemnified Party with use of counsel designated chosen by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not represent the Indemnified Party is would present such counsel with a party theretoconflict of interest, (ii) unless the actual or potential defendants in, or targets of, any such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to claim include both the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such action, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel shall have reasonably concluded that there are may be legal defences defenses available to the Indemnified Party that it which are different from or additional to those available to the Indemnifying Party and that (in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that which case the Indemnifying Party is shall not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counselassume the defense of such claim on the Indemnified Party's behalf), the reasonable costs of which shall be at (iii) the Indemnifying Party’s expense, Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party and to otherwise participate in within a reasonable time after notice of the defence institution of such claim, actionor (iv) the Indemnifying Party shall have authorized the Indemnified Party to employ separate counsel at the Indemnifying Party's expense. If an Indemnifying Party assumes the defense of a claim, suitno compromise or settlement thereof may be effected by the Indemnifying Party without the Indemnified Party's prior written consent unless (a) there is no finding or admission of any violation of law and no effect on any other claims that may be made against the Indemnified Party and (b) the sole relief provided is monetary damages that are to be paid in full by the Indemnifying Party.
(c) In the event of a Direct Claim, proceeding unless the Indemnifying Party notifies the Indemnified Party within 90 days of receipt for a Claim Notice that it disputes such claim, the amount of such claim shall be conclusively deemed a liability of the Indemnifying Party hereunder and shall be paid to the Indemnified Party immediately.
(d) From and after the delivery of a Claim Notice hereunder, at the reasonable request of the Indemnifying Party, the Indemnified Party shall grant the Indemnifying Party and its representatives all reasonable access to the books, records and properties of the Indemnified Party to the extent reasonably related to the matters to which the Claim Notice relates. The Indemnifying Party will not, and shall require that its representatives do not, use (except in connection with such Claim Notice) or investigation on behalf disclose to any third Person other than the Indemnifying Party's representatives (except as may be required by applicable Laws) any information obtained pursuant to this paragraph which is designated as confidential by the Indemnified Party. All such access shall be granted during normal business hours, shall be subject to the normal safety regulations of the Indemnified Party, and shall be granted under conditions which will not interfere with the business and operations of the Indemnified Party.
(e) Any and all disputes arising out of any claim to indemnification pursuant to paragraph 8 of this Agreement shall be resolved in accordance with the provisions of Sections 16 and 17 of this Agreement.
(f) In the event that an Indemnified Party has a right against a third party with respect to any Damages paid to such Indemnified Party by an Indemnifying Party, then such Indemnifying Party shall, to the extent of such payment, be subrogated to such rights of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Party.
Appears in 1 contract
Method of Asserting Claims. The party making a claim under this Article VII is referred to as the "Indemnified Party" and the party against whom such claims are asserted under this Article VII is referred to as the "Indemnifying Party." All claims by any Indemnified Party under this Article VII shall be asserted and resolved as follows:
(a) If a Party entitled to indemnification pursuant to In the terms hereof (the “Indemnified Party”) intends to seek indemnification under this Article 4 from the other Party (the “Indemnifying Party”), the Indemnified Party shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of event that any claim or action demand for which an Indemnifying Party would be liable to an Indemnified Party hereunder is asserted against or sought to be collected from such Indemnified Party by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or delay by an said Indemnified Party to so shall with reasonable promptness notify the Indemnifying Party (as set forth above) shall not relieve in writing the Indemnifying Party of its indemnification obligations hereunder such claim or demand, specifying the basis for such claim or demand, and the amount or the estimated amount thereof to the extent then determinable (which estimate shall not be conclusive of the final amount of such claim and demand; the "Claim Notice"); provided, however, that any failure to give such Claim Notice will not be deemed a waiver of any rights of the Indemnified Party except to the extent the rights of the Indemnifying Party are actually prejudiced by such failure. The Indemnifying Party, upon request of the Indemnified Party, shall retain counsel (who shall be reasonably acceptable to the Indemnified Party, however the liability which the Indemnifying Party has ) to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced to the extent that any such delay in or failure to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for herein.
(b) The Indemnifying Party, at its sole cost and expense, shall have the right to assume the defence of any claim, action, suit, proceeding or investigation brought against the Indemnified Party with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such action, suit, proceeding or investigation include both represent the Indemnified Party and shall pay the reasonable fees and disbursements of such counsel with regard thereto' provided, however, that any Indemnified Party is hereby authorized prior to the date on which it receives written notice from the Indemnifying Party designating such counsel, to retain counsel, whose fees and expenses shall be at the expense of the Indemnifying Party, to file any motion, answer or other pleading and take such other action which it reasonably shall deem necessary to protect its interests or those of the Indemnifying Party until the date on which the Indemnified Party is advised by counsel that there are legal defences available to receives such notice from the Indemnified Party that are additional to those available to Indemnifying Party. After the Indemnifying Party and that in shall retain such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not takencounsel, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate its own counsel, but the reasonable costs fees and expenses of which such counsel shall be at the expense of such Indemnified Party unless (x) the Indemnifying Party’s expense, Party and the Indemnified Party shall have mutually agreed to represent the retention of such counsel or (y) the named parties of any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to otherwise participate actual or potential differing interests between them. The Indemnifying Party shall not, in connection with any proceedings or related proceedings in the defence same jurisdiction, be liable for the fees and expenses of more than one such claim, action, suit, proceeding firm for the Indemnified Party (except to the extent the Indemnified Party retained counsel to protect its (or investigation on behalf the Indemnifying Party's) rights prior to the selection of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of counsel by the Indemnifying Party.) If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel in contesting any claim or demand which the Indemnifying Party defends. A claim or demand may not be settled by the Indemnifying Party without the prior written consent of the Indemnified Party (which consent will not be unreasonably withheld) unless, as part of such settlement, the Indemnified Party shall receive a full and unconditional release reasonably satisfactory to the Indemnified Party.
(b) In the event any Indemnified Party shall have a claim against any Indemnifying Party hereunder which does not involve a claim or demand being asserted against 21 22 or sought to be collected from it by a third party, the Indemnified Party shall send a Claim Notice with respect to such claim to the Indemnifying Party.
(c) After delivery of a Claim Notice, so long as any right to indemnification exists pursuant to this Article VII, the affected parties each agree to retain all Books and Records related to such Claim Notice. In each instance, the Indemnified Party shall have the right to be kept fully informed by the Indemnifying Party and its legal counsel with respect to any legal proceedings. Any information or documents made available to any party hereunder and designated as confidential by the party providing such information or documents and which is not otherwise generally available to the public and not already within the knowledge of the party to whom the information is provided (unless otherwise covered by the confidentiality provision of any other agreement among the parties hereto, or any of them), and except as may be required by applicable law, shall not be disclosed to any third Person (except for the representatives of the party being provided with information, in which event the party being provided with the information shall request its representatives not to disclose any such information which it otherwise required hereunder to be kept confidential).
(d) The Indemnification of the Purchaser by the Shareholders shall be limited to only those matters specifically provided in Section 8.3 above; Purchaser hereby releases, discharges and acquits the Shareholders from any other damage, claim, liability, deficiency, loss, cost or expense, known or unknown incurred by Purchaser arising out of or resulting from any other matter not specifically covered or provided in Section 8.2 above.
(e) The Indemnification of the Shareholders by the Purchaser shall be limited to only those matters specifically provided in Section 8.2 above; the Shareholders hereby release, discharge and acquit the Purchaser from any other damage, claim, liability, deficiency, loss, cost or expense, known or unknown incurred by the Shareholders arising out of or resulting from any other matter not specifically covered or provided in Section 8.2 above.
Appears in 1 contract
Method of Asserting Claims. The party seeking indemnification (athe "Indemnitee") If will give prompt written notice to the other party or parties (the "Indemnitor") of any Claim which it discovers or of which it receives notice after the Closing and which might give rise to a Party Claim by it against Indemnitor under Section 9 hereof, stating the nature, basis and (to the extent known) amount thereof; provided that failure to give prompt notice shall not jeopardize the right of any Indemnitee to indemnification unless such failure shall have materially prejudiced the ability of the Indemnitor to defend such Claim. In case of any Claim or suit by a third party or by any governmental body, or any legal, administrative or arbitration proceeding with respect to which Indemnitor may have liability under the indemnity agreement contained in this Section 9, Indemnitor shall be entitled to indemnification pursuant participate therein, and, to the terms hereof (extent desired by it, to assume the “Indemnified Party”) intends defense thereof, and after notice from Indemnitor to seek indemnification under this Article 4 from Indemnitee of the election so to assume the defense thereof, Indemnitor will not be liable to Indemnitee for any legal or other Party (expenses subsequently incurred by Indemnitee in connection with the “Indemnifying Party”)defense thereof, other than reasonable costs of investigation, unless Indemnitor does not actually assume the Indemnified Party shall give the Indemnifying Party defense thereof following notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party election. Indemnitee and Indemnitor will render to each other such assistance as may reasonably be required of actual knowledge or information as each other in order to the factual insure proper and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of any claim or action by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or delay by an Indemnified Party to so notify the Indemnifying Party (as set forth above) shall not relieve the Indemnifying Party of its indemnification obligations hereunder to the Indemnified Party, however the liability which the Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced to the extent that any such delay in or failure to give notice as herein required prejudices the defence adequate defense of any such action, suit, Claim or proceeding. If the Indemnitor actually assumes the defense of the Indemnitee, investigation the Indemnitee will not make any settlement of any Claim which might give rise to liability of Indemnitor under the indemnity agreements contained in this Section without the written consent of Indemnitor, which consent shall not be unreasonably withheld. The Indemnitor will not make any settlement of any Claim which does not include an unconditional release of the Indemnitee or claim, or otherwise results would affect the manner in any increase in the liability which the Indemnifying Party has under Indemnitee may conduct its indemnity provided for herein.
(b) The Indemnifying Party, at its sole cost and expense, shall have the right to assume the defence of any claim, action, suit, proceeding or investigation brought against the Indemnified Party with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will notbusiness, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and shall permit them to consult with the employees and counsel (if any) of the Indemnified PartyIndemnitee.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such action, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which shall be at the Indemnifying Party’s expense, to represent the Indemnified Party and to otherwise participate in the defence of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Party.
Appears in 1 contract
Method of Asserting Claims. The party making a claim under this Article VIII is referred to as the "Indemnified Party" and the party against whom such claims are asserted under Section 8.2 is referred to as the "Indemnifying Party". All claims by any Indemnified Party under Section 8.2 shall be asserted and resolved as follows:
(a) If a Party entitled to indemnification pursuant to In the terms hereof (the “Indemnified Party”) intends to seek indemnification under this Article 4 from the other Party (the “Indemnifying Party”), the Indemnified Party shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of event that any claim or action demand for which an Indemnifying Party would be liable to an Indemnified Party hereunder is asserted against or sought to be collected from such Indemnified Party by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or delay by an said Indemnified Party to so shall within fifteen (15) days notify the Indemnifying Party (as set forth above) shall not relieve in writing the Indemnifying Party of its indemnification obligations hereunder such claim or demand, specifying the nature of the specific basis for such claim or demand, and the amount or the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim and demand; any such notice, being the "Claim Notice"); provided, however, that any failure to give such Claim Notice will not be deemed a waiver of any rights of the Indemnified Party, however Party except to the liability which extent the rights of the Indemnifying Party has are actually prejudiced or harmed. The Indemnifying Party may elect to assume the defense of any such claim or demand by delivering written notice to the Indemnified Party pursuant of such election; provided that any Indemnified Party is hereby authorized prior to the terms of this Article 4 (and for date on which it receives written notice from the Indemnifying Party will be obligated assuming such defense, to indemnify the Indemnified Party in respect of) retain counsel, whose reasonable fees and expenses shall be reduced to at the extent that any such delay in or failure to give notice as herein required prejudices the defence expense of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for herein.
(b) The Indemnifying Party, at its sole cost and expense, shall have the right to assume the defence of any claim, action, suit, proceeding or investigation brought against the Indemnified Party with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such action, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, to file any motion, answer or other pleading and take such other action which it reasonably shall deem necessary to protect its interests or those of the Indemnifying Party until the date on which the Indemnified Party is advised by counsel that there are legal defences available to receives such notice from the Indemnified Party that are additional to those available to Indemnifying Party. After the Indemnifying Party and that in shall assume such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not takendefense, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate its own counsel, but the reasonable costs fees and expenses of which such counsel shall be at the expense of such Indemnified Party unless the named parties of any such proceeding (including any impleaded parties) include both the Indemnifying Party’s expense, to represent Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to otherwise participate actual or potential differing interests between them. The Indemnifying Party shall not, in connection with any proceedings or related proceedings in the defence same jurisdiction, be liable for the reasonable fees and expenses of more than one such claim, action, suit, proceeding firm for the Indemnified Party (except to the extent the Indemnified Party retained counsel to protect its (or investigation on behalf the Indemnifying Party's) rights prior to the selection of such Indemnified counsel by the Indemnifying Party. For further certaintyThe Indemnified Party agrees to cooperate reasonably with the Indemnifying Party and its counsel in contesting any claim or demand, only one legal firm which the Indemnifying Party defends. No claim or demand may be engaged at settled by an Indemnifying Party or, where permitted pursuant to this Agreement, by an Indemnified Party without the expense consent of the Indemnified Party in the first CHCI or the consent of the Indemnifying Party in the second CHCI, which consent shall not be unreasonably withheld, unless such settlement shall be accompanied by a complete release of the Indemnified Party in the first CHCI or the Indemnifying Party in the second CHCI.
(b) In the event any Indemnified Party shall have a claim against any Indemnifying Party hereunder which does not involve a claim or demand being asserted against or sought to be collected from it by a third party, the Indemnified Party shall send a Claim Notice with respect to such claim to the Indemnifying Party. If the Indemnifying Party does not dispute such claim within thirty (30) days of receipt of the Claim Notice the amount of such claim shall be paid to the Indemnified Party within forty-five (45) days of receipt of the Claim Notice.
(c) So long as any right to indemnification exists pursuant to this Article 8, the affected parties each agree to retain all books, records, accounts, instruments and documents reasonably related to the Claim Notice. In each instance, the Indemnified Party shall have the right to be kept informed by the Indemnifying Party and its legal counsel with respect to all significant matters relating to any legal proceedings. Any information or documents made available to any party hereunder, which information is designated as confidential by the party providing such information and which is not otherwise generally available to the public, or which information is not otherwise lawfully obtained from third parties or not already within the knowledge of the party to whom the information is provided (unless otherwise covered by the confidentiality provisions of any other agreement among the parties hereto, or any of them), and except as may be required by applicable law or requested by third party lenders to such party, shall not be disclosed to any third Person (except for the representatives of the party being provided with the information, in which event the party being provided with the information shall request its representatives not to disclose any such information which it otherwise required hereunder to be kept confidential). To the extent a Loss occurs under Section 8.2(a), John Francis may elect to meet such obligation by delivery for ▇▇▇▇▇▇▇▇▇▇▇n of a number of shares of HUNAPU INC. Common Stock. Any stock delivered pursuant to this Section 8.3(d) shall be valued at the lower of (i) a price equal to the fair market value on the date of delivery and (ii) and a price equal to the fair market value on the Closing Date (the "Fair Market Value"). To the extent a Loss occurs under Section 8.2(b), CHSI may elect to make such payment (i) in CHCI, or (ii) in a number of shares of HUNAPU INC. Common Stock having a Fair Market Value equal to such payment amount.
Appears in 1 contract
Sources: Merger Agreement (Hunapu Inc)
Method of Asserting Claims. (a1) If a any Indemnified Party entitled to indemnification pursuant to the terms hereof (the “receives notice of or otherwise becomes aware of any Claim asserted against such Indemnified Party”) intends to seek indemnification under this Article 4 from the other Party (the “Indemnifying Party”), the Indemnified Party concerned shall give forthwith notify AmeriCredit Canada and AmeriCredit of the Indemnifying Party nature of such Claim in writing (provided that any failure to so notify shall not affect the liability of AmeriCredit Canada or AmeriCredit under this Section unless and only to the extent that AmeriCredit Canada or AmeriCredit shall be actually prejudiced thereby), which notice shall specify, in reasonable detail to the extent then known, the nature and estimated amount of the Claim. If AmeriCredit Canada or AmeriCredit receives notice of or otherwise becomes aware of any Claim, it shall forthwith notify any affected Indemnified Party of such claim for indemnification promptly following Claim in writing, which notice shall specify, in reasonable detail to the extent then known, the nature and estimated amount of the Claim.
(2) AmeriCredit Canada or AmeriCredit shall, forthwith after the receipt of notice of a Claim from an Indemnified Party or determination by the delivery of notice of a Claim to an Indemnified Party, as the case may be, either pay and settle such Claim, or subject as hereinafter provided, be entitled (but not required) to assume the defence on behalf of the Indemnified Party of actual knowledge any suit brought to enforce such a Claim; provided, however, that the defence shall be through legal counsel engaged and paid for solely by AmeriCredit Canada or information as to the factual AmeriCredit and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of any claim or action by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or delay by an Indemnified Party to so notify the Indemnifying Party (as set forth above) shall not relieve the Indemnifying Party of its indemnification obligations hereunder acceptable to the Indemnified Party, however acting reasonably, and no admission of liability or settlement shall be made by AmeriCredit Canada, AmeriCredit or the liability which Indemnified Party without, in each case, the Indemnifying prior written consent of AmeriCredit Canada and AmeriCredit and the Indemnified Party, such consent not to be unreasonably or arbitrarily withheld or delayed. An Indemnified Party shall have the right to employ separate counsel in any such suit and participate in the defence thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless: (a) the employment of such counsel has been authorized by AmeriCredit Canada or AmeriCredit; (b) AmeriCredit Canada or AmeriCredit, as the case may be, has not, within a reasonable time after receiving written notice, employed counsel to have charge of the defence of such action; or (c) the named parties to any such suit include the Indemnified Party and the Indemnified Party shall have been advised by counsel that there may be one or more legal defences available to the Indemnified Party pursuant which are different from or in addition to those available to AmeriCredit Canada or AmeriCredit, as the terms of this Article 4 case may be (and for in which case AmeriCredit Canada or AmeriCredit, as the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced to the extent that any such delay in or failure to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for herein.
(b) The Indemnifying Party, at its sole cost and expensecase may be, shall not have the right to assume the defence of any claim, action, suit, proceeding or investigation brought against such suit on behalf of the Indemnified Party but AmeriCredit Canada or AmeriCredit, as the case may be, shall be liable in accordance with the provisions of Section 3.1 to pay the reasonable fees and disbursements of counsel designated by the Indemnifying Party and reasonably satisfactory to for the Indemnified Party; provided that ).
(3) If AmeriCredit Canada or AmeriCredit undertakes, conducts and controls the Indemnifying settlement or defence of such Claim, AmeriCredit Canada or AmeriCredit, as the case may be, shall permit the relevant Indemnified Party will notto participate in such settlement or defence, without at the option of the Indemnified Party’s . Notwithstanding the foregoing, the prior written consent (of such Indemnified Party shall be required, such consent not to be unreasonably withheld)or arbitrarily withheld or delayed, settle, compromise, for any consent to the entry of judgment or other similar act, or any judgment in settlement AmeriCredit Canada or otherwise seek AmeriCredit proposes to terminate any action, suit, proceeding, investigation or claim enter into in respect of a Claim, which indemnification may be sought hereunder provides for or would result in: (whether a) the granting of equitable relief against such Indemnified Party; (b) any admission or not deemed admission of liability or default on the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out part of such actionIndemnified Party; or (c) the granting of any other relief or remedy which, suitin the opinion of such Indemnified Party, proceedingacting reasonably, investigation or claim. The Indemnified Party will give to would otherwise impair the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to reputation of such defence or settlement, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Party.
(c4) Notwithstanding If AmeriCredit Canada or AmeriCredit is unsuccessful in its defence of a Claim in whole or in part or fails to comply with the foregoing:terms of settlement pertaining thereto and the person or entity making such Claim is entitled to assert a right to recover any amount from an Indemnified Party, any amount paid by such an Indemnified Party in satisfaction of such Claim shall be added to and form part of the Obligations.
(i5) if If AmeriCredit Canada or AmeriCredit does not undertake, conduct and control the defendants in any settlement or defence of a Claim forthwith following the receipt of notice of such action, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigationClaim, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the relevant Indemnified Party shall have the right right, but not the obligation, upon notice to retain separate counselAmeriCredit Canada and AmeriCredit to contest, settle or compromise the reasonable costs Claim in its sole discretion. Any payment made by such Indemnified Party to settle or compromise such Claim, together with the fees and expenses of which counsel incurred in connection thereto, shall be at added to and form part of the Indemnifying Party’s expense, to represent Obligations.
(6) AmeriCredit or AmeriCredit Canada shall make payment of the Obligations in respect of any Claim forthwith after payment of such Claim is properly made or owing by an Indemnified Party and a demand for payment is made in writing by such an Indemnified Party to it, and all fees and expenses of counsel which an Indemnified Party is entitled to receive under this Agreement shall be reimbursed by AmeriCredit Canada or AmeriCredit as they are incurred.
(7) If any action is instituted against AmeriCredit Canada or AmeriCredit as a result of any matter referred to in Section 4.1 hereof or if any payment is made by AmeriCredit Canada or AmeriCredit pursuant to this Section, AmeriCredit Canada or AmeriCredit shall not make any claim for contribution against the Underwriter or any of the other Indemnified Parties.
(8) Notwithstanding any other Section or provision contained in this Indemnity Agreement, the rights to indemnity and contribution contained in Section 4.1 hereof shall survive the Closing Date and the sale of the Offered Certificates, and shall continue in full force and effect unaffected by any disposition or re-distribution by any purchaser of the Offered Certificates.
(9) Notwithstanding Section 4.1, the parties agree that AmeriCredit Canada and AmeriCredit shall not be responsible to any Indemnified Party with respect to any action or failure to act which constitutes negligence or wilful misconduct on the part of such Indemnified Party.
(10) The rights of indemnity contained in Section 4.1 hereof shall not enure to the benefit of the Underwriter if the Obligations arise from any Claim by any purchaser who was not provided with a copy of the Prospectus or any amendment or supplement thereto, if applicable, which corrects any Misrepresentation which is the basis of such claim and which was required under applicable Canadian securities laws to be delivered to such purchaser by the Underwriter.
(11) In the event of any Claim, the defence of which is being undertaken and controlled by AmeriCredit Canada or AmeriCredit, the relevant Indemnified Parties will use all reasonable efforts to make available to AmeriCredit Canada or AmeriCredit, as the case may be, those employees whose assistance, testimony or presence is necessary to assist AmeriCredit Canada or AmeriCredit, as the case may be, in evaluating and in defending any such Claim; provided that AmeriCredit Canada or AmeriCredit, as the case may be, shall be responsible for the reasonable expense associated with any employees made available by an Indemnified Party to AmeriCredit Canada or AmeriCredit hereunder, which expense shall be equal to an amount to be mutually agreed upon per person per hour or per day for each day or portion thereof that such employees are assisting AmeriCredit Canada or AmeriCredit and which expenses shall not exceed the actual cost to such Indemnified Party associated with such employees. Such expense shall be added to and form part of the Obligations.
(12) The relevant Indemnified Party shall make available to AmeriCredit Canada or AmeriCredit, as the case may be, or their respective representatives on a timely basis, all documents, records and other materials in the possession of such Indemnified Parties, at the expense of AmeriCredit Canada or AmeriCredit, as the case may be, reasonably required by AmeriCredit Canada or AmeriCredit for its use in defending any Claim and shall otherwise participate cooperate on a timely basis with AmeriCredit Canada or AmeriCredit, as the case may be, in the defence of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying PartyClaim.
Appears in 1 contract
Sources: Seller's Representation and Indemnity Covenant (Americredit Corp)
Method of Asserting Claims. (a) If a Party entitled to indemnification pursuant to the terms hereof (the “Indemnified Party”) intends to seek indemnification under this Article 4 8 from the other another Party (the “Indemnifying Party”), the Indemnified Party shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of any claim or action by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or delay by an Indemnified Party to so notify the Indemnifying Party (as set forth above) shall not relieve the Indemnifying Party of its indemnification obligations hereunder to the Indemnified Party, however the liability which the Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 8 (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced to the extent that any such delay in or failure to give notice as herein required prejudices the defence of any such claim, action, suit, proceeding, proceeding or investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for herein.
(b) The Indemnifying Party, at its sole cost and expense, shall have the right to assume the defence of any claim, action, suit, proceeding or investigation brought against the Indemnified Party with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will not, without the Indemnified Party’s 's prior written consent (such consent not to be unreasonably withheld, conditioned or delayed), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any claim, action, suit, proceeding, proceeding or investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such claim, action, suit, proceeding, investigation proceeding or claiminvestigation. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such claim, action, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; , then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which shall be at the Indemnifying Party’s 's expense, to represent the Indemnified Party and to otherwise participate in the defence of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only Only one legal firm may be engaged at the expense of the Indemnifying Party.
(d) Notwithstanding anything herein contained, an Indemnified Party shall have the right, at its sole cost and expense, to retain counsel to separately represent it in connection with the negotiation, settlement or defence of any claim, action, suit, proceeding or investigation brought by a third party; provided, that such counsel shall not, unless agreed to by the Indemnifying Party, assume control of the negotiation, settlement or defence.
(e) Except to the extent expressly provided herein, no Indemnified Party shall settle any claim, action, suit, proceeding or investigation with respect to which it has sought or intends to seek indemnification pursuant to this Article 8 without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed.
(f) If the Indemnifying Party does not assume the defence of any claim, action, suit, proceeding or investigation brought against the Indemnified Party, then the Indemnified Party shall have the right to do so on its own behalf and all such costs and expenses in so doing shall be added to the amount of the claim for indemnification hereunder by such Indemnified Party as against the Indemnifying Party.
Appears in 1 contract
Sources: Implementation Agreement (SNDL Inc.)
Method of Asserting Claims. (a) If a All ------------------------------ -------------------------- claims for indemnification by any Indemnified Party entitled to indemnification pursuant to the terms hereof (the “Indemnified Party”) intends to seek indemnification under this Article 4 from X shall be asserted and resolved as follows: (a In the other Party (the “Indemnifying Party”), the Indemnified Party shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of event that any claim or action demand for which an Indemnifying Party would be liable to an Indemnified Party hereunder is asserted against or sought to be collected from such Indemnified Party by a third party, promptly following receipt of written notice said Indemnified Party shall, within twenty (20) days of such third party claim or action. The failure of or delay by an Indemnified Party to so demand being made, notify the Indemnifying Party of such claim or demand, specifying the nature of and specific basis for such claim or demand and the amount or the estimated amount thereof to the extent then feasible (as set forth above) the "Claim Notice"). The estimate of Loss contained in the Claim Notice shall not relieve limit the amount of the Indemnifying Party of its indemnification obligations hereunder to Party's ultimate liability under the Indemnified Party, however the liability which the claim. The Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will shall not be obligated to indemnify the Indemnified Party in with respect of) shall be reduced to the extent that any such delay in claim or failure demand if the Indemnified Party fails to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which notify the Indemnifying Party has under its indemnity provided for herein.
thereof in accordance with the provisions of this Agreement within said twenty (b20) day period. The Indemnifying Party shall have 30 days from the personal delivery or mailing of the Claim Notice (the "Notice Period") to notify the Indemnified Party (i) whether or not the liability of the Indemnifying Party to the Indemnified Party hereunder with respect to such claim or demand is disputed, and (ii) whether or not the Indemnifying Party desires, at the sole cost and expense of the Indemnifying Party, to defend the Indemnified Party against such claim or demand; provided, however, that any Indemnified Party is hereby authorized prior to and during the Notice Period to file any motion, answer or other pleading which it shall deem necessary or appropriate to protect its interest or those of the Indemnifying Party and not unreasonably prejudicial to the Indemnifying Party. In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against such claim or demand, then, except as hereinafter provided, the Indemnifying Party shall have the right to defend by all appropriate proceedings, which proceedings shall be promptly settled or prosecuted by it to a final conclusion. If the Indemnified Party desires to participate in, but not control, any such defense or settlement it may do so at its sole cost and expense. If requested by the Indemnifying Party, shall have the right to assume the defence of any claim, action, suit, proceeding or investigation brought against the Indemnified Party agrees to cooperate with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access in contesting any claim or demand which the Indemnifying Party elects to all business records contest, or, if appropriate and other documents relevant related to such defence the claim in question, in making any counterclaim against the person asserting the third party claim or settlementdemand, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants or any cross complaint against any person but in any such action, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which shall be case at the Indemnifying Party’s expense, to represent the Indemnified Party sole cost and to otherwise participate in the defence of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Party.. No claim may be settled without the consent of the Indemnifying Party, unless such settlement includes the complete release of the Indemnifying Party. (b In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder which does not involve a claim or demand being asserted against or sought to be collected from it by a third party, the Indemnified Party shall send a Claim Notice with respect to such claim to the Indemnifying Party. If the Indemnifying Party does not notify the Indemnified Party within the Notice Period that it disputes such claim, the amount of such claim shall be conclusively deemed a liability of the Indemnifying Party hereunder. If the Indemnifying Party has disputed such claim, as provided above, such dispute shall be resolved by arbitration as provided in Article 13.11. 10.4
Appears in 1 contract
Method of Asserting Claims. (a) If In the event that any Action, Claim or demand (collectively, “Claim”) for which a Party entitled party hereto has an obligation to provide indemnification pursuant (the “Indemnifying Party”) would be liable to the terms hereof another party hereunder (the “Indemnified Party”) intends is asserted against or sought to seek indemnification under this Article 4 be collected from the other an Indemnified Party (the “Indemnifying Party”)by a third party, the Indemnified Party shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of any claim or action by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or delay by an Indemnified Party to so notify the Indemnifying Party (as set forth above) shall not relieve of such Claim, specifying the Indemnifying Party nature of its indemnification obligations hereunder to the Indemnified Party, however Claim and the liability which amount or the Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced estimated amount thereof to the extent that any such delay in or failure to give notice as herein required prejudices then feasible (which estimate shall not be conclusive of the defence final amount of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which Claim) (the “Claim Notice”). The Indemnifying Party has under its indemnity provided for herein.
(b) The Indemnifying Partyshall thereupon, at its sole cost and expense, shall have the right to assume the defence control of any claimthe defense, action, suit, proceeding settlement or investigation brought compromise of the Claim against the Indemnified Party with counsel designated by the of Indemnifying Party and Party’s choosing that is reasonably satisfactory to the Indemnified Party; provided that the . The failure to timely give a Claim Notice shall not relieve Indemnifying Party will of its or his obligations hereunder, except and only to the extent that such failure shall result in any material prejudice to Indemnifying Party in defense of the Claim.
(b) Indemnifying Party shall not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromiseof the Indemnified Party, consent to the entry of any judgment against the Indemnified Party or enter into any settlement or compromise which does not include, as an unconditional term thereof (i.e., there being no requirement that the Indemnified Party pay any amount of money or give any other consideration), the giving by the claimant or plaintiff to the Indemnified Party of a release, in or otherwise seek form and substance satisfactory to terminate any actionthe Indemnified Party, suit, proceeding, investigation or claim from all liability in respect of which indemnification may be sought hereunder (whether or not the Claim. If any Indemnified Party is a party thereto) unless desires to participate in, but not control, any such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence defense or settlement, it may do so at its sole cost and shall permit them to consult with expense. If, in the employees and counsel (if any) reasonable opinion of the Indemnified Party.
(c) Notwithstanding the foregoing:
, (i) if the use of counsel chosen by Indemnifying Party would present such counsel with a conflict of interest, or (ii) the actual or potential defendants in in, or targets of, any such action, suit, proceeding or investigation Action include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking there may be legal defenses available to it which are different from or has not taken, all necessary steps in addition to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same those available to the Indemnifying Party, and or (iii) any Claim, or the Indemnifying Party has not rectified litigation or resolution of any Claim, involves an issue or matter which could reasonably have a materially adverse effect on the situation within a reasonable time; then reputation, business, operations, assets, properties or prospects of the Indemnified Party, then, in each case, the Indemnified Party shall have the right to retain separate counselcontrol the defense or settlement of any such Claim or demand; provided, the reasonable costs of which shall be at the Indemnifying Party’s expensehowever, to represent that the Indemnified Party and shall not settle any such Claim without the prior written consent of Indemnifying Party, which consent shall not be unreasonably withheld or delayed, provided however, that the Indemnifying Party that objects to otherwise participate such settlement must cover any difference in award in the defence event that the final determination is greater than the settlement offer of the Claim(s) objected to by such Indemnifying Party. If the Indemnified Party should elect to exercise such right, Indemnifying Party shall have the right to participate in, but not control, the defense or settlement of such claimClaim at its sole cost and expense.
(c) In the event an Indemnified Party should have a Claim against Seller and/or Shareholder hereunder that does not involve a Claim being asserted against or sought to be collected from it by a third party, action, suit, proceeding or investigation on behalf of the Indemnified Party shall send a Claim Notice with respect to such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying PartyClaim to Seller and/or Shareholder.
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by any Indemnified Party under this Article X shall be asserted and resolved as follows:
(a) If a Party entitled to indemnification pursuant to In the terms hereof (the “Indemnified Party”) intends to seek indemnification under this Article 4 from the other Party (the “Indemnifying Party”), the Indemnified Party shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of event that any claim or action demand for which an Indemnifying Party would be liable to an Indemnified Party hereunder is asserted against or sought to be collected from such Indemnified Party by a third party, promptly following receipt of written notice said Indemnified Party shall, within twenty (20) days of such third party claim or action. The failure of or delay by an Indemnified Party to so demand being made, notify the Indemnifying Party of such claim or demand, specifying the nature of and specific basis for such claim or demand and the amount or the estimated amount thereof to the extent then feasible (as set forth above) the "Claim Notice"). The estimate of Loss contained in the Claim Notice shall not relieve limit the amount of the Indemnifying Party of its indemnification obligations hereunder to Party's ultimate liability under the Indemnified Party, however the liability which the claim. The Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will shall not be obligated to indemnify the Indemnified Party in with respect of) shall be reduced to the extent that any such delay in claim or failure demand if the Indemnified Party fails to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which notify the Indemnifying Party has under its indemnity provided for herein.
thereof in accordance with the provisions of this Agreement within said twenty (b20) day period. The Indemnifying Party shall have 30 days from the personal delivery or mailing of the Claim Notice (the "Notice Period") to notify the Indemnified Party (i) whether or not the liability of the Indemnifying Party to the Indemnified Party hereunder with respect to such claim or demand is disputed, and (ii) whether or not the Indemnifying Party desires, at the sole cost and expense of the Indemnifying Party, to defend the Indemnified Party against such claim or demand; provided, however, that any Indemnified Party is hereby authorized prior to and during the Notice Period to file any motion, answer or other pleading which it shall deem necessary or appropriate to protect its interest or those of the Indemnifying Party and not unreasonably prejudicial to the Indemnifying Party. In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against such claim or demand, then, except as hereinafter provided, the Indemnifying Party shall have the right to defend by all appropriate proceedings, which proceedings shall be promptly settled or prosecuted by it to a final conclusion. If the Indemnified Party desires to participate in, but not control, any such defense or settlement it may do so at its sole cost and expense. If requested by the Indemnifying Party, shall have the right to assume the defence of any claim, action, suit, proceeding or investigation brought against the Indemnified Party agrees to cooperate with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access in contesting any claim or demand which the Indemnifying Party elects to all business records contest, or, if appropriate and other documents relevant related to such defence the claim in question, in making any counterclaim against the person asserting the third party claim or settlementdemand, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants or any cross complaint against any person but in any such action, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which shall be case at the Indemnifying Party’s expense, to represent the Indemnified Party sole cost and to otherwise participate in the defence of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Party. No claim may be settled without the consent of the Indemnifying Party, unless such settlement includes the complete release of the Indemnifying Party.
(b) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder which does not involve a claim or demand being asserted against or sought to be collected from it by a third party, the Indemnified Party shall send a Claim Notice with respect to such claim to the Indemnifying Party. If the Indemnifying Party does not notify the Indemnified Party within the Notice Period that it disputes such claim, the amount of such claim shall be conclusively deemed a liability of the Indemnifying Party hereunder. If the Indemnifying Party has disputed such claim, as provided above, such dispute shall be resolved by arbitration as provided in Article 13.11.
Appears in 1 contract
Method of Asserting Claims. (a) If a Party any person entitled to indemnification pursuant to the terms Section 7.1 hereof (an "Indemnitee") is threatened in writing with any claim, or any claim is presented in writing to, or any action or proceeding is formally commenced against, any of the “Indemnified Party”) intends Indemnitees which may give rise to seek the right of indemnification under this Article 4 from the other Party (the “Indemnifying Party”)hereunder, the Indemnified Party shall Indemnitee will promptly give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of any claim or action by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or thereof to each indemnifying party; provided, however, that any delay by an Indemnified Party to Indemnitee in so notify notifying the Indemnifying Party (as set forth above) indemnifying party shall not relieve the Indemnifying Party indemnifying party of its indemnification obligations any liability to any of the Indemnitees hereunder to the Indemnified Party, however the liability which the Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced except to the extent that any the indemnifying party shall have been actually prejudiced as a result of such delay in or failure to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for hereinfailure.
(b) The Indemnifying Partyindemnifying party or parties, by delivery of written notice to an Indemnitee within 30 days of notice of claim to indemnity from an Indemnitee, may elect to assume the defense of such claim, action or proceeding at the expense of the indemnifying party; provided, however, that (i) unless such written notice shall be accompanied by a written agreement of each indemnifying party acknowledging the liability of the indemnifying parties to the Indemnitees as a result of this Agreement for any indemnified damage which any Indemnitee might incur or suffer as a result of such claim, action or proceeding or the contesting thereof, each indemnifying party shall be jointly and severally liable for the attorneys' fees and expenses of the Indemnitee, if any, incurred in connection with defending such claim; (ii) counsel undertaking such defense shall be reasonably acceptable to the Indemnitee; (iii) the indemnifying parties shall mutually elect to contest such claim, action or proceeding and shall conduct and settle such contest in a joint manner, and if the indemnifying parties shall fail at any time to agree, the Indemnitee shall have no obligation to contest such claim, action or proceeding; and (iv) if the Indemnitee requests in writing that such claim, action or proceeding not to be contested, then it shall not be contested but shall not be covered by the indemnities provided herein. The indemnifying parties may settle an indemnifiable matter after delivering a written description of the proposed settlement to and receiving consent from the Indemnitee. In the event the Indemnitee unreasonably declines to consent to such settlement, then the Indemnitee shall have no right to indemnification beyond the amount of the proposed settlement. In the event the indemnifying parties jointly elect to contest an indemnifiable matter, HSOA and the SELLERS shall permit the other party reasonable access to their respective books and records and shall otherwise cooperate in connection with such claim. If the indemnifying parties do not jointly elect to contest an indemnifiable matter, they shall cooperate with the Indemnitee to the extent any of them has knowledge of facts or circumstances relating to such matter, and the Indemnitee shall have the exclusive right to prosecute, defend, compromise, settle or pay any claim, but the Indemnitee shall not be obligated to do so; provided, however, that, should the Indemnitee elect not to exercise its right exclusively to prosecute, defend, compromise, settle or pay such claim, any indemnifying party may elect to do so at its sole cost and expense, shall have the right to assume the defence of any claim, action, suit, proceeding or investigation brought against the Indemnified Party with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding If an Indemnitee is entitled to indemnification pursuant to Section 7.1(a)(i) and an action or proceeding has not been commenced, the foregoing:
Indemnitee must first give written notice to the indemnifying party and the indemnifying party shall have thirty (i30) if days from the defendants date of the written notice in which to cure the breach. If the indemnifying party disputes either the existence of the breach or that the Indemnitee is entitled to indemnification, then the Parties shall submit to binding arbitration in the County of Riverside, California before a retired judge of any California State Superior Court or a retired judge of any California Federal Court. The rules of Evidence found in the California Evidence Code shall be applied in the arbitration. All of the rights to discovery found in California Code of Civil Procedure Section 1282.6, 1283 and 1283.05 shall be permitted and shall govern in any such actionarbitration between the parties. The Riverside County Superior Court shall have jurisdiction to confirm, suit, proceeding or investigation include both the Indemnified Party enter and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation enforce any arbitration award rendered by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which shall be at the Indemnifying Party’s expense, to represent the Indemnified Party and to otherwise participate arbitrator in the defence of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Partyconformity with this Agreement.
Appears in 1 contract
Sources: Stock Purchase Agreement (Home Solutions of America Inc)
Method of Asserting Claims. (a) If a Party any person entitled to indemnification pursuant to the terms Section 5.1 hereof (an "Indemnitee") is threatened in writing with any claim, or any claim is presented in writing to, or any action or proceeding is formally commenced against, any of the “Indemnified Party”) intends Indemnitees which may give rise to seek the right of indemnification under this Article 4 from the other Party (the “Indemnifying Party”)hereunder, the Indemnified Party shall Indemnitee will promptly give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of any claim or action by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or thereof to each indemnifying party; provided, however, that any delay by an Indemnified Party to Indemnitee in so notify notifying the Indemnifying Party (as set forth above) indemnifying party shall not relieve the Indemnifying Party indemnifying party of its indemnification obligations any liability to any of the Indemnitees hereunder to the Indemnified Party, however the liability which the Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced except to the extent that any the indemnifying party shall have been actually prejudiced as a result of such delay in or failure to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for hereinfailure.
(b) The Indemnifying Partyindemnifying party or parties, at its sole cost and expenseby delivery of written notice to an Indemnitee within 30 days of notice of claim to indemnity from an Indemnitee, shall have the right may elect to assume the defence of any claim, action, suit, proceeding or investigation brought against the Indemnified Party with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such action, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which shall be at the Indemnifying Party’s expense, to represent the Indemnified Party and to otherwise participate in the defence defense of such claim, action, suit, action or proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Partyindemnifying party; provided, however, that (i) unless such written notice shall be accompanied by a written agreement of each indemnifying party acknowledging the liability of the indemnifying parties to the Indemnitees as a result of this Agreement for any indemnified damage which any Indemnitee might incur or suffer as a result of such claim, action or proceeding or the contesting thereof, each indemnifying party shall be jointly and severally liable for the attorneys' fees and expenses of the Indemnitee, if any, incurred in connection with defending such claim; (ii) counsel undertaking such defense shall be reasonably acceptable to the Indemnitee; (iii) the indemnifying parties shall mutually elect to contest such claim, action or proceeding and shall conduct and settle such contest in a joint manner, and if the indemnifying parties shall fail at any time to agree, the Indemnitee shall have no obligation to contest such claim, action or proceeding; and (iv) if the Indemnitee requests in writing that such claim, action or proceeding not to be contested, then it shall not be contested but shall not be covered by the indemnities provided herein. The indemnifying parties may settle an indemnifiable matter after delivering a written description of the proposed settlement to and receiving consent from the Indemnitee. In the event the Indemnitee unreasonably declines to consent to such settlement, then the Indemnitee shall have no right to indemnification beyond the amount of the proposed settlement. In the event the indemnifying parties jointly elect to contest an indemnifiable matter, HSOA and the PARTNERS shall permit the other party reasonable access to their respective books and records and shall otherwise cooperate in connection with such claim. If the indemnifying parties do not jointly elect to contest an indemnifiable matter, they shall cooperate with the Indemnitee to the extent any of them has knowledge of facts or circumstances relating to such matter, and the Indemnitee shall have the exclusive right to prosecute, defend, compromise, settle or pay any claim, but the Indemnitee shall not be obligated to do so; provided, however, that, should the Indemnitee elect not to exercise its right exclusively to prosecute, defend, compromise, settle or pay such claim, any indemnifying party may elect to do so at its sole expense.
Appears in 1 contract
Sources: Partnership Interest Purchase Agreement (Home Solutions of America Inc)
Method of Asserting Claims. All claims for ------------------------------- indemnification by a party entitled to be indemnified hereunder (an "Indemnitee") by another party hereto (an "Indemnitor"), except for claims relating to Taxes which shall be governed by the provisions of Article 8, shall be asserted and resolved as follows:
(a) If a Party entitled to indemnification pursuant to In the terms hereof (the “Indemnified Party”) intends to seek indemnification under this Article 4 from the other Party (the “Indemnifying Party”), the Indemnified Party shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of event that any claim or action demand for which an Indemnitee may claim indemnity is asserted against or sought to be collected from an Indemnitee by a third party, promptly the Indemnitee shall notify the Indemnitor within 20 days following the receipt of written notice by the Indemnitee of such third party claim or actiondemand, specifying the nature of such claim or demand and the amount or the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim and demand) (the "Claim Notice"). The failure Failure of or delay by an Indemnified Party Indemnitee to so notify the Indemnifying Party (as set forth above) an Indemnitor within such 20-day period shall not relieve the Indemnifying Party an Indemnitor of its indemnification obligations hereunder to the Indemnified Party, however the liability which the Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will be obligated obligation to indemnify the Indemnified Party in respect of) shall be reduced Indemnitee for such claim or demand except to the extent that any such the delay in giving notice of such claim or failure demand in fact materially prejudices (i) the defense of such claim or demand where the Indemnitor has the right to give notice as herein required prejudices the defence of any control such action, suit, proceeding, investigation defense or claim, or otherwise results in any increase (ii) participation in the liability which defense of such claim or demand where the Indemnifying Party Indemnitor has under its indemnity provided a right of participation. Any party hereto against whom a claim or demand is asserted by a third party shall, without prejudice to any right of indemnification hereunder, appropriately respond to such claim or demand (whether by answer, denial, request for hereinextension of time or other action) to such claim or demand within any applicable time period, so as to preserve any rights or remedies it or any other party may have against the person making such claim or demand.
(b) The Indemnifying PartyAn Indemnitor shall have thirty (30) days from the date on which the Claim Notice is duly given (the "Notice Period") to notify an Indemnitee (i) whether or not it disputes the liability of the Indemnitor to the Indemnitee hereunder with respect to such claim or demand and (ii) whether or not the Indemnitor desires, at its sole cost and expense, to defend the Indemnitee against such claim or demand. If an Indemnitor does not notify an Indemnitee within the Notice Period that it disputes its liability to the Indemnitee, the Indemnitor shall have be liable for the right to assume the defence amount of any claimresulting Losses.
(c) In the event an Indemnitor notifies an Indemnitee within the Notice Period that it desires to defend the Indemnitee against such a claim against or demand from the Indemnitee, actionthen except as hereinafter provided the Indemnitor shall defend, suitat its sole cost and expense, proceeding the Indemnitee by appropriate proceedings, shall use its best efforts to settle or investigation brought against prosecute such proceedings to a final conclusion in such a manner as to avoid any risk of the Indemnified Party with counsel designated by Indemnitee (or MAA, MAI or the Indemnifying Party Subsidiaries, if a Purchaser is the Indemnitee) becoming subject to any injunctive or other equitable order or relief or to liability for any other matter, and reasonably satisfactory to shall control the Indemnified Partyconduct of such defense; provided provided, however, that the Indemnifying Party will Indemnitor shall not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromiseof the Indemnitee, consent to the entry of any judgment against the Indemnitee or enter into any settlement or compromise which does not include, as an unconditional term thereof, the giving by the claimant or plaintiff to the Indemnitee of a release, in or otherwise seek form and substance reasonably satisfactory to terminate any actionthe Indemnitee, suit, proceeding, investigation or claim from all liability in respect of such claim or litigation. If the Indemnitee desires to participate in, but not control, any such defense or settlement, it may do so at its sole cost and expense.
(d) Prior to an Indemnitor's settling any claim or demand the defense of which indemnification may it has assumed control, the Indemnitor shall obtain the Indemnitee's approval, confirmed in writing in accordance with the notice provisions hereof, which approval shall not be sought hereunder (whether unreasonably withheld or not the Indemnified Party is a party thereto) unless delayed. If an Indemnitee notifies an Indemnitor of its disapproval of such settlement, compromisethe Indemnitee shall thereupon become liable, consent from and after the date of its disapproval, for the amount of any award, judgment, costs or termination includes a release expenses (including attorney fees) in excess of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party proposed settlement amount and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such action, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counselelect to control the defense of such claim at its sole cost and expense.
(e) In the event an Indemnitee should have a claim against an Indemnitor hereunder which does not involve a claim or demand being asserted against or sought to be collected from the Indemnitee (or MAA, MAI or the Subsidiaries, if a Purchaser is the Indemnitee) by a third party, the reasonable costs of which Indemnitee shall be at promptly send a Claim Notice with respect to such claim to the Indemnifying Party’s expense, to represent Indemnitor. If the Indemnified Party and to otherwise participate in Indemnitor does not notify the defence of Indemnitee within the Notice Period that it disputes such claim, action, suit, proceeding or investigation on behalf the Indemnitor shall be liable for the amount of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Partyany resulting Losses.
Appears in 1 contract
Sources: Stock Purchase Agreement (American Mobile Satellite Corp)
Method of Asserting Claims. All claims for indemnification by any Indemnified Party under this Article VIII shall be asserted and resolved as follows:
(a) If a Party entitled to indemnification pursuant to In the terms hereof (the “Indemnified Party”) intends to seek indemnification under this Article 4 from the other Party (the “Indemnifying Party”), the Indemnified Party shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of event that any claim or action demand for which an Indemnifying Party would be liable to an Indemnified Party hereunder is asserted against or sought to be collected from such Indemnified Party by a third party, promptly following receipt of written notice said Indemnified Party shall, within sixty (60) days of such third party claim or action. The failure of or delay by an Indemnified Party to so demand being made, notify the Indemnifying Party of such claim or demand, specifying the nature of and specific basis for such claim or demand and the amount or the estimated amount thereof to the extent then feasible (as set forth above) the "Claim Notice"). The estimate of Loss contained in the Claim Notice shall not relieve limit the amount of the Indemnifying Party of its indemnification obligations hereunder to Party's ultimate liability under the Indemnified Party, however the liability which the claim. The Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will shall not be obligated to indemnify the Indemnified Party in with respect of) shall be reduced to the extent that any such delay in claim or failure demand if the Indemnified Party fails to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which notify the Indemnifying Party has under its indemnity provided for herein.
thereof in accordance with the provisions of this Agreement within said sixty (b60) day period. The Indemnifying Party shall have 30 days from the personal delivery or mailing of the Claim Notice (the "Notice Period") to notify the Indemnified Party (i) whether or not the liability of the Indemnifying Party to the Indemnified Party hereunder with respect to such claim or demand is disputed, and (ii) whether or not the Indemnifying Party desires, at the sole cost and expense of the Indemnifying Party, to defend the Indemnified Party against such claim or demand; provided, however, that any Indemnified Party is hereby authorized prior to and during the Notice Period to file any motion, answer or other pleading which it shall deem necessary or appropriate to protect its interest or those of the Indemnifying Party and not unreasonably prejudicial to the Indemnifying Party. In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against such claim or demand, then, except as hereinafter provided, the Indemnifying Party shall have the right to defend by all appropriate proceedings, which proceedings shall be promptly settled or prosecuted by it to a final conclusion. If the Indemnified Party desires to participate in any such defense or settlement it may do so at its sole cost and expense, but it shall have not in any event control the right to assume defense offered by the defence of any claimIndemnifying Party. If requested by the Indemnifying Party, action, suit, proceeding or investigation brought against the Indemnified Party agrees to cooperate with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access in contesting any claim or demand which the Indemnifying Party elects to all business records contest, or, if appropriate and other documents relevant related to such defence the claim in question, in making any counterclaim against the person asserting the third party claim or settlementdemand, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants or any cross complaint against any person but in any such action, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which shall be case at the Indemnifying Party’s expense, to represent the Indemnified Party sole cost and to otherwise participate in the defence of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Party. No claim for which the Indemnified Party seeks indemnification may be settled without the consent of the Indemnifying Party, unless such settlement includes the complete release of the Indemnifying Party.
(b) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder which does not involve a claim or demand being asserted against or sought to be collected from it by a third party, the Indemnified Party shall send a Claim Notice with respect to such claim to the Indemnifying Party. If the Indemnifying Party does not notify the Indemnified Party within the Notice Period that it disputes such claim, the amount of such claim shall be conclusively deemed a liability of the Indemnifying Party hereunder. If the Indemnifying Party has disputed such claim, as provided above, such dispute shall be resolved by arbitration.
Appears in 1 contract
Sources: Agreement and Plan of Exchange (Harbour Capital Corp)
Method of Asserting Claims. Subject to the time periods set forth in Section 8.4 hereof, the party seeking indemnity (a“Indemnitee”) will give prompt written notice to the party or parties providing indemnity (“Indemnitor”) of any Claim (as defined below) which it discovers or of which it receives notice after the Closing and which might give rise to a Claim by it against Indemnitor under this Article VII, stating the nature, basis and (to the extent known) amount thereof. Copies of any papers received in connection with a Claim shall be forwarded to Indemnitor together with the notice of the Claim. In case of any Claim or suit by a third party or by any governmental body, or any legal administrative or arbitration proceeding with respect to which Indemnitor may have liability under the indemnity agreement contained in this Article VII, Indemnitor shall be entitled to participate therein, and, to the extent desired by Indemnitor, to assume the defense thereof, and after notice from Indemnitor to Indemnitee of the election to so assume the defense thereof, Indemnitor will not be liable to Indemnitee for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense thereof, other than reasonable costs of investigation, unless Indemnitor does not actually assume the defense thereof following notice of such election. Indemnitee and Indemnitor will render to each other such assistance as may reasonably be required of each other in order to ensure proper and adequate defense of any such suit, claim or proceeding. Indemnitee will not make any settlement of any Claim which might give rise to liability of an Indemnitor under the indemnity agreement contained in this Article VIII without the prior written consent of Indemnitor, which consent shall not be unreasonably withheld. If Indemnitor shall desire and be able to effect a Party bonafide compromise or settlement of any such suit, claim or proceeding at its expense and such settlement includes as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnitee of a release from all liability in respect of such suit, claim or proceeding and does not provide any form of relief from the Indemnitee other than the payment of money damages or other money payment, and Indemnitee shall unreasonably refuse to consent to such compromise or settlement, then the Indemnitor’s liability under this Article VII with respect to such suit, claim or proceeding shall be limited to the amount so offered in compromise or settlement together with all legal and other expenses which may have been incurred prior to the date on which Indemnitee has refused to consent to such compromise or settlement. For purposes hereof, the term “Claim” shall mean any claim for which any of the Buyer Indemnified Parties or the Seller Indemnified Parties may be entitled to indemnification pursuant to the terms hereof (the “Indemnified Party”) intends to seek indemnification under this Article 4 from the other Party (the “Indemnifying Party”), the Indemnified Party shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt Sections 8.1 or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of any claim or action by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or delay by an Indemnified Party to so notify the Indemnifying Party (as set forth 8.2 above) shall not relieve the Indemnifying Party of its indemnification obligations hereunder to the Indemnified Party, however the liability which the Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced to the extent that any such delay in or failure to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for herein.
(b) The Indemnifying Party, at its sole cost and expense, shall have the right to assume the defence of any claim, action, suit, proceeding or investigation brought against the Indemnified Party with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such action, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which shall be at the Indemnifying Party’s expense, to represent the Indemnified Party and to otherwise participate in the defence of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Party.
Appears in 1 contract
Sources: Asset Purchase Agreement (Mediware Information Systems Inc)
Method of Asserting Claims. The party making a claim under this -------------------------- Article 8 is referred to as the "Indemnified Party" and the party against whom ----------------- such claims are asserted under this Article 8 is referred to as the "Indemnifying Party". All claims by an Indemnified Party under this Article 8 ------------------ shall be asserted and resolved as follows:
(a) If a Party entitled to indemnification pursuant to In the terms hereof (the “Indemnified Party”) intends to seek indemnification under this Article 4 from the other Party (the “Indemnifying Party”), the Indemnified Party shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim which is subject to indemnification and, where such claim results from the commencement of event that any claim or action demand for which an Indemnifying Party would be liable to an Indemnified Party hereunder is asserted or sought to be collected from such Indemnified Party by a third party, promptly following receipt of written notice of such third party claim or action. The failure of or delay by an Indemnified Party to so shall with reasonable promptness notify the Indemnifying Party (as set forth above) shall not relieve in writing the Indemnifying Party of its indemnification obligations hereunder such claim or demand, specifying the basis for such claim or demand, and the amount or the estimated amount thereof to the extent determinable (which estimate shall not be conclusive of the final amount of such claim or demand) (such notice is referred to as the "Claim Notice"); provided, ------------ -------- however, that any failure to give such Claim Notice will not be deemed a waiver ------- of any rights of the Indemnified Party except to the extent the rights of the Indemnifying Parties are actually prejudiced by such failure. The Indemnifying Party, upon request of the Indemnified party, shall retain counsel (who shall be reasonably acceptable to the Indemnified Party, however the liability which the Indemnifying Party has ) to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party will be obligated to indemnify the Indemnified Party in respect of) shall be reduced to the extent that any such delay in or failure to give notice as herein required prejudices the defence of any such action, suit, proceeding, investigation or claim, or otherwise results in any increase in the liability which the Indemnifying Party has under its indemnity provided for herein.
(b) The Indemnifying Party, at its sole cost and expense, shall have the right to assume the defence of any claim, action, suit, proceeding or investigation brought against the Indemnified Party with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will not, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and shall permit them to consult with the employees and counsel (if any) of the Indemnified Party.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such action, suit, proceeding or investigation include both represent the Indemnified Party and shall pay the reasonable fees and disbursements of such counsel with regard thereto; provided, however, that any Indemnified Party is hereby -------- ------- authorized prior to the date on which it receives written notice from the Indemnifying Party designating such counsel, to retain counsel, whose fees and expenses shall be at the expense of the Indemnifying Party, to file any motion, answer or other pleading and take such other action which such Indemnified Party shall deem necessary to protect its interests or those of the Indemnifying Party until the date on which the Indemnified Party is advised by counsel that there are legal defences available to receives such notice from the Indemnified Party that are additional to those available to Indemnifying Party. After the Indemnifying Party and that in shall retain such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not takencounsel, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate its own counsel, but the reasonable costs fees and expenses of which such counsel shall be at the Indemnifying Party’s expense, to represent the Indemnified Party and to otherwise participate in the defence of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnified Party unless (x) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the retention of such counsel or (y) the named parties of any proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnifying Party shall not, in connection with any proceedings or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one such firm for the Indemnified Party (except to the extent the Indemnified Party retained counsel to protect its (or the Indemnifying Party's) rights prior to the selection of counsel by the Indemnifying Party). If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel in contesting any claim or demand which the Indemnifying Party defends. A claim or demand may not be settled by the Indemnifying Party without the prior written consent of the Indemnified Party (which consent will not be unreasonably withheld) unless, as part of such settlement, the Indemnified Party shall receive a full and unconditional release satisfactory to the Indemnified Party.
(b) In the event any Indemnified Party shall have a claim against any Indemnifying Party hereunder which does not involve a claim or demand being asserted against or sought to be collected from it by a third party, the Indemnified Party shall send a Claim Notice with respect to such claim to the Indemnifying Party.
(c) After delivery of a Claim Notice, so long as any right to indemnification exists pursuant to this Article 8, the affected parties each agreed to retain all Books and Records related to such Claim Notice. In each instance pertaining to a claim by a third party, the Indemnified Party shall have the right to be kept fully informed by the Indemnifying Party and its legal counsel with respect to any legal proceedings. Any information or documents made available to any party hereunder and designated as confidential by the party providing such information or documents and which is not otherwise generally available to the public and not already within the knowledge of the party to whom the information is provided (unless otherwise covered by the confidentiality provisions of any other agreement among the parties hereto, or any of them), and except as may be required be required by applicable law, shall not be disclosed to any third Person (except for the representatives of the party being provided with the information, in which event the party being provided with the information shall request its representatives not to disclose any such information which it otherwise required hereunder to be kept confidential).
(d) An Indemnified Party shall first seek indemnification from the Company pursuant to this Article 8, but shall send Unified copies of all correspondence sent to the Company pursuant to Section 8.4. To the extent that the Company does not fulfill its indemnification obligation for any reason with thirty (30) daysof its receipt of Purchaser's demand for payment (or, if such demand is contested pursuant to Section 10.10 of this Agreement, within fifteen (15) days of the resolution of such contest), the Purchaser may seek indemnification from Unified, subject to the limitations set forth in Section 8.5.
Appears in 1 contract
Sources: Asset Contribution Agreement (Unified Financial Services Inc)
Method of Asserting Claims. The party seeking indemnification (a"Indemnitee") If a Party entitled to indemnification pursuant will give prompt written notice to the terms hereof party from whom indemnification is being sought (the “Indemnified Party”"Indemnitor") intends to seek indemnification under this Article 4 from the other Party (the “Indemnifying Party”), the Indemnified Party shall give the Indemnifying Party notice of such claim for indemnification promptly following the receipt or determination by the Indemnified Party of actual knowledge or information as to the factual and legal basis of any claim ("Claim") which is subject it discovers or of which it receives notice after the Closing and which might give rise to a Claim by it against Indemnitor under Section 10, stating the nature, basis and (to the extent known) amount thereof; provided that failure to give prompt notice will not jeopardize Indemnitee s right to indemnification and, where unless such claim results from failure materially prejudices the commencement ability of Indemnitee to defend the Claim. In case of any claim Claim or action suit by a third partyparty or by any governmental body, promptly following receipt of written notice of such third party claim or action. The failure of any legal, administrative or delay by an Indemnified Party arbitration proceeding with respect to so notify which Indemnitor may have liability under the Indemnifying Party (as set forth above) shall not relieve the Indemnifying Party of its indemnification obligations hereunder to the Indemnified Partyindemnity agreement contained in this Section 10, however the liability which the Indemnifying Party has to the Indemnified Party pursuant to the terms of this Article 4 (and for which the Indemnifying Party Indemnitor will be obligated entitled to indemnify the Indemnified Party in respect of) shall be reduced participate therein, and, to the extent that any desired by Indemnitor, to assume the defense thereof. The parties will render to each other such delay assistance as may reasonably be required of each other at Indemnitor's expense in or failure order to give notice as herein required prejudices the defence insure proper and adequate defense of any such action, suit, Claim or proceeding. If Indemnitor actually assumes the defense of Indemnitee, investigation Indemnitee will not make any settlement of any Claim which might give rise to liability of Indemnitor under the indemnity agreements contained in this Section 10 or claimotherwise without the written consent of Indemnitor, which consent will not be unreasonably withheld; and Indemnitor will not agree to a compromise or settlement of any such suit, Claim or proceeding that would require the payment of any amounts by Indemnitee, or otherwise results would affect the manner in any increase in which Buyer may conduct the liability which the Indemnifying Party has under its indemnity provided for herein.
(b) The Indemnifying Party, at its sole cost and expense, shall have the right to assume the defence business of any claim, action, suit, proceeding or investigation brought against the Indemnified Party with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party will notSeller, without the Indemnified Party’s prior written consent (such consent not to be unreasonably withheld), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes a release of the Indemnified Party from all liabilities arising out of such action, suit, proceeding, investigation or claim. The Indemnified Party will give to the Indemnifying Party and its counsel reasonable access to all business records and other documents relevant to such defence or settlement, and shall permit them to consult with the employees and counsel (if any) of the Indemnified PartyBuyer.
(c) Notwithstanding the foregoing:
(i) if the defendants in any such action, suit, proceeding or investigation include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party is advised by counsel that there are legal defences available to the Indemnified Party that are additional to those available to the Indemnifying Party and that in such circumstances representation by the same counsel would be inappropriate; or
(ii) if the Indemnified Party shall have reasonably concluded that the Indemnifying Party is not taking or has not taken, all necessary steps to diligently defend such claim, action, suit, proceeding or investigation, the Indemnified Party has provided written notice of same to the Indemnifying Party, and the Indemnifying Party has not rectified the situation within a reasonable time; then the Indemnified Party shall have the right to retain separate counsel, the reasonable costs of which shall be at the Indemnifying Party’s expense, to represent the Indemnified Party and to otherwise participate in the defence of such claim, action, suit, proceeding or investigation on behalf of such Indemnified Party. For further certainty, only one legal firm may be engaged at the expense of the Indemnifying Party.
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