PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS. (a) Promptly after receipt by an indemnified party under Section 10.2 or 10.3 of notice of a claim against it (" Claim"), such indemnified party shall, if a claim is to be made against an indemnifying party under such Section, give notice to the indemnifying party of such Claim, but the failure to notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party, except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the indemnified party's failure to give such notice. (b) If any Claim referred to in Section 10.4(a) is made against an indemnified party and it gives notice to the indemnifying party of such Claim, the indemnifying party will, unless the Claim involves Taxes, be entitled to participate in the defense of such Claim and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Claim and the indemnified party determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Claim and provide indemnification with respect to such Claim), to assume the defense of such Claim with counsel satisfactory to the indemnified party and, after notice from the indemnifying party to the indemnified party of its election to assume the defense of such Claim, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under such Section for any fees of other counsel or any other expenses with respect to the defense of such Claim in each case subsequently incurred by the indemnified party in connection with the defense of such Claim, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a Claim, (a) it will be conclusively established for purposes of this Agreement that the claims made in that Claim are within the scope of and subject to indemnification; (b) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party's consent unless (i) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other Claims that may be made against the indemnified party, and (ii) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (c) the indemnifying party will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of a Claim and the indemnifying party does not, within ten days after the indemnified party's notice is given, give notice to the indemnified party of its election to assume the defense of such Claim, the indemnifying party will be bound by any determination with respect to said Claim or any compromise or settlement effected by the indemnified party unless it objects in good faith as to whether such claim is properly within the scope of such indemnification. (c) Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that a Claim may adversely affect it or its Related Persons other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or settle such Claim, but the indemnifying party will not be bound by any determination of a Claim so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In the event that TWC Shareholders assume the defense of a Claim under this Section 10.4, Anicom hereby agrees and endeavors to cooperate, and to cause TWC to cooperate, in all reasonable respects with TWC Shareholders as they may reasonably request, which cooperation shall include, without limitation, making available business records, tax filings, documents or other information of TWC pertaining to, and employees (including employee time) of TWC having personal knowledge of, the circumstances relating to such Claim.
Appears in 1 contract
PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS. (a) Promptly after receipt by an indemnified party under Section 10.2 or 10.3 Article V of notice of a claim the commencement of any Proceeding against it (" Claim")it, such indemnified party shallwill, if a claim is to be made against an indemnifying party under such Section, give notice to the indemnifying party of the commencement of such Claimclaim, but the failure to notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party, except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the indemnified indemnifying party's ’s failure to give such notice.
(b) If any Claim Proceeding referred to in Section 10.4(a5.6(a) is made brought against an indemnified party and it gives notice to the indemnifying party of the commencement of such ClaimProceeding, the indemnifying party will, unless the Claim claim involves Taxes, be entitled to participate in the defense of such Claim Proceeding and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Claim Proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Claim Proceeding and provide indemnification with respect to such ClaimProceeding), to assume the defense of such Claim Proceeding with counsel satisfactory to the indemnified party and, after notice from the indemnifying party to the indemnified party of its election to assume the defense of such ClaimProceeding, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under such Section this Article V for any fees of other counsel or any other expenses with respect to the defense of such Claim Proceeding, in each case subsequently incurred by the indemnified party in connection with the defense of such ClaimProceeding, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a ClaimProceeding, (ai) it will be conclusively established for purposes of this Agreement that the claims made in that Claim Proceeding are within the scope of and subject to indemnification; (bii) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party's ’s consent unless (iA) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other Claims claims that may be made against the indemnified party, and (iiB) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (ciii) the indemnifying indemnified party will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of a Claim the commencement of any Proceeding and the indemnifying party does not, within ten days after the indemnified party's ’s notice is given, give notice to the indemnified party of its election to assume the defense of such ClaimProceeding, the indemnifying party will be bound by any determination with respect to said Claim made in such Proceeding or any compromise or settlement effected by the indemnified party unless it objects in good faith as to whether such claim is properly within the scope of such indemnificationparty.
(c) Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that a Claim Proceeding may adversely affect it or its Related Persons affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or settle such ClaimProceeding, but the indemnifying party will not be bound by any determination of a Claim Proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In the event that TWC Shareholders assume the defense of a Claim under this Section 10.4, Anicom hereby agrees and endeavors to cooperate, and to cause TWC to cooperate, in all reasonable respects with TWC Shareholders as they may reasonably request, which cooperation shall include, without limitation, making available business records, tax filings, documents or other information of TWC pertaining to, and employees (including employee time) of TWC having personal knowledge of, the circumstances relating to such Claim.
Appears in 1 contract
PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS. (a) Promptly Within thirty days after receipt by an indemnified party under Section 10.2 or 10.3 of notice of a claim the commencement of any proceeding against it (" Claim")to which the indemnification in this Section 9 relates, such indemnified party shall, if a claim is to be made against an indemnifying party under such SectionSection 9, give notice to the indemnifying party of the commencement of such Claimproceeding, but the failure to so notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party, except to the extent that the indemnifying party party, demonstrates that the defense of such action proceeding is materially prejudiced by the indemnified party's failure to give such notice.
(b) If any Claim proceeding referred to in Section 10.4(aparagraph (a) above is made brought against an indemnified party and it gives notice to the indemnifying party of the commencement of such Claimproceeding, the indemnifying party will, unless the Claim involves Taxes, will be entitled to participate in the defense of such Claim proceeding and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Claim proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Claim proceeding and provide indemnification with respect to such Claimproceeding), to assume the defense of such Claim proceeding with counsel reasonably satisfactory to the indemnified party and, after notice from the indemnifying party to the indemnified party of its election to assume the defense of such Claimproceeding, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under such Section 9 for any fees of other counsel or any other expenses with respect to the defense of such Claim proceeding, in each case subsequently incurred by the indemnified party in connection with the defense of such Claimproceeding, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a Claimproceeding, (aA) it will be conclusively established for purposes of this Agreement that the claims made in that Claim proceeding are within the scope of and subject to indemnification; (bB) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party's consent unless (il) there is no finding or admission of any violation of Legal Requirements Law by the indemnified party (or any affiliate thereof) or any violation of the rights of any Person and no effect on any other Claims claims that may be made against the indemnified party, and (ii2) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (c) the indemnifying . The indemnified party will have no liability with respect to any compromise or settlement of the claims underlying such claims proceeding effected without its consent. If notice is given to an indemnifying party of a Claim the commencement of any proceeding and the indemnifying party does not, within ten days after the indemnified party's notice is given, give notice to the indemnified party of its election to assume the defense of such Claimproceeding, the indemnifying party will be bound by any determination with respect to said Claim made in such proceeding or any compromise or settlement effected by the indemnified party unless it objects in good faith as to whether such claim is properly within the scope of such indemnificationparty.
(c) Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that a Claim proceeding may adversely affect it or its Related Persons affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, with respect to those issues, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or settle such Claimproceeding, but the indemnifying party will not be bound by any determination of a Claim proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In the event that TWC Shareholders assume the defense of a Claim under this Section 10.4, Anicom hereby agrees and endeavors to cooperate, and to cause TWC to cooperate, in all reasonable respects with TWC Shareholders as they may reasonably request, which cooperation shall include, without limitation, making available business records, tax filings, documents or other information of TWC pertaining to, and employees (including employee time) of TWC having personal knowledge of, the circumstances relating to such Claimconsent.
Appears in 1 contract
Sources: Acquisition Agreement (Pennsylvania Real Estate Investment Trust)
PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS. (a) Promptly after receipt by an indemnified party under Section 10.2 or 10.3 of notice of a claim the commencement of any Proceeding against it (" Claim")it, such indemnified party shallwill, if a claim is to be made against an indemnifying party under such Sectionparty, give notice to the indemnifying party of the commencement of such Claimclaim, but the failure to notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party, except to the extent that the indemnifying party demonstrates that the defense of such action is materially prejudiced by the indemnified party's ’s failure to give such notice.
(b) If any Claim referred to in Section 10.4(a) Proceeding is made brought against an indemnified party and it gives notice to the indemnifying party of the commencement of such ClaimProceeding, the indemnifying party will, unless the Claim claim involves Taxes, be entitled to participate in the defense of such Claim Proceeding and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Claim Proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Claim Proceeding and provide indemnification with respect to such ClaimProceeding), to assume the defense of such Claim Proceeding with counsel satisfactory to the indemnified party and, after notice from the indemnifying party to the indemnified party of its election to assume the defense of such ClaimProceeding, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under such this Section 11 for any fees of other counsel or any other expenses with respect to the defense of such Claim Proceeding, in each case subsequently incurred by the indemnified party in connection with the defense of such ClaimProceeding, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a ClaimProceeding, (ai) it will be conclusively established for purposes of this Agreement that the claims made in that Claim Proceeding are within the scope of and subject to indemnification; (bii) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party's ’s consent unless (iA) there is no finding or admission of any violation of Legal Requirements Law or any violation of the rights of any Person and no effect on any other Claims claims that may be made against the indemnified party, and (iiB) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (ciii) the indemnifying indemnified party will have no liability with respect to any compromise or settlement of such claims effected without its prior written consent. If notice is given to an indemnifying party of a Claim the commencement of any Proceeding and the indemnifying party does not, within ten days after the indemnified party's ’s notice is given, give notice to the indemnified party of its election to assume the defense of such ClaimProceeding, the indemnifying party will be bound by any determination with respect to said Claim made in such Proceeding or any compromise or settlement effected by the indemnified party unless it objects in good faith as to whether such claim is properly within the scope of such indemnificationparty.
(c) Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that a Claim Proceeding may adversely affect it or its Related Persons Affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, compromise or settle such ClaimProceeding, but the indemnifying party will not be bound by any determination of a Claim Proceeding so defended or any compromise or settlement effected without its prior written consent (which may not be unreasonably withheld). In .
(d) Each party hereby consents to the event non-exclusive jurisdiction of any court in which a Proceeding is brought against any indemnified party for purposes of any claim that TWC Shareholders assume the defense of a Claim an indemnified party may have under this Section 10.4, Anicom hereby agrees and endeavors Agreement with respect to cooperatesuch Proceeding or the matters alleged therein, and to cause TWC to cooperate, in all reasonable respects agrees that process may be served on such party with TWC Shareholders as they may reasonably request, which cooperation shall include, without limitation, making available business records, tax filings, documents or other information of TWC pertaining to, and employees (including employee time) of TWC having personal knowledge of, the circumstances relating respect to such Claima claim anywhere in the world.
Appears in 1 contract
Sources: Stock Purchase Agreement (China Technology Development Group Corp)
PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS. (a) Promptly after receipt by an indemnified party under Section 10.2 8.2, 8.5 or 10.3 (to the extent provided in the last sentence of Section 8.4) Section 8.4 of notice of a claim the commencement of any Proceeding against it (" Claim")it, such indemnified party shallwill, if a claim is to be made against an indemnifying party under such Sectionsection, give notice to the indemnifying party of the commencement of such Claimclaim, but the failure to notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party, except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the indemnified indemnifying party's ’s failure to give such notice.
(b) If any Claim Proceeding referred to in Section 10.4(a8.10(a) is made brought against an indemnified party and it gives notice to the indemnifying party of the commencement of such ClaimProceeding, the indemnifying party will, unless the Claim claim involves Taxes, be entitled to participate in the defense of such Claim Proceeding and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Claim Proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Claim Proceeding and provide indemnification with respect to such ClaimProceeding), to assume the defense of such Claim Proceeding with counsel satisfactory to the indemnified party and, after notice from the indemnifying party to the indemnified party of its election to assume the defense of such ClaimProceeding, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under such this Section 8.10 for any fees of other counsel or any other expenses with respect to the defense of such Claim Proceeding, in each case subsequently incurred by the indemnified party in connection with the defense of such ClaimProceeding, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a ClaimProceeding, (ai) it will be conclusively established for purposes of this Agreement that the claims made in that Claim Proceeding are within the scope of and subject to indemnification; (bii) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party's ’s consent unless (iA) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other Claims claims that may be made against the indemnified party, and (iiB) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (ciii) the indemnifying indemnified party will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of a Claim the commencement of any Proceeding and the indemnifying party does not, within ten days after the indemnified party's ’s notice is given, give notice to the indemnified party of its election to assume the defense of such ClaimProceeding, the indemnifying party will be bound by any determination with respect to said Claim made in such Proceeding or any compromise or settlement effected by the indemnified party unless it objects in good faith as to whether such claim is properly within the scope of such indemnificationparty.
(c) Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that a Claim Proceeding may adversely affect it or its Related Persons affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or settle such ClaimProceeding, at the sole cost and expense of the indemnifying party, but the indemnifying party will not be bound by any determination of a Claim Proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In .
(d) Shareholders hereby consent to the event non-exclusive jurisdiction of any court in which a Proceeding is brought against any Indemnified Person for purposes of any claim that TWC Shareholders assume the defense of a Claim an Indemnified Person may have under this Section 10.4, Anicom hereby agrees and endeavors Agreement with respect to cooperatesuch Proceeding or the matters alleged therein, and to cause TWC to cooperate, in all reasonable respects agree that process may be served on Shareholders with TWC Shareholders as they may reasonably request, which cooperation shall include, without limitation, making available business records, tax filings, documents or other information of TWC pertaining to, and employees (including employee time) of TWC having personal knowledge of, the circumstances relating respect to such Claima claim anywhere in the world.
Appears in 1 contract
PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS. (a) Promptly after receipt by an indemnified party under Section 10.2 6.2 or 10.3 Section 6.3 of notice of a claim the commencement of any Proceeding against it (" Claim")it, such indemnified party shallwill, if a claim is to be made against an indemnifying party under such Section, give notice to the indemnifying party of the commencement of such ClaimProceeding together with the estimated amount of claims under such Proceeding, but the failure to notify the indemnifying party party, or delay in such notification, will not relieve the indemnifying party of any liability that it may have to any indemnified party, except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the indemnified indemnifying party's failure to give give, or delay in giving, such notice.
(b) If any Claim referred to in Section 10.4(a) is made against an indemnified party and it gives notice to the indemnifying party of such Claimthe commencement of a Proceeding referred to in Section 6.5(a), the indemnifying party will, unless the Claim involves Taxes, will be entitled to participate in the defense of such Claim Proceeding and, to the extent that it wishes to assume the defense of such Proceeding with counsel reasonably satisfactory to the indemnified party and, after notice from the indemnifying party to the indemnified party of its election to assume the defense of such Proceeding, it being understood that the indemnifying party shall control such defense except as otherwise provided below, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under this Article VI for any fees of other counsel or any other expenses with respect to the defense of such Proceeding, in each case subsequently incurred by the indemnified party in connection with the defense of such Proceeding, other than reasonable costs of investigation (unless (i) the indemnifying party is also a party to such Claim Proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Claim Proceeding and provide indemnification with respect to such ClaimProceeding), to assume the defense of such Claim with counsel satisfactory to the indemnified party and, after notice from the indemnifying party to the indemnified party of its election to assume the defense of such Claim, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under such Section for any fees of other counsel or any other expenses with respect to the defense of such Claim in each case subsequently incurred by the indemnified party in connection with the defense of such Claim, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a ClaimProceeding, (a) it will be conclusively established for purposes of this Agreement that the claims made in that Claim are within the scope of and subject to indemnification; (by) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party's consent Consent unless (iA) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other Claims claims that may be made against the indemnified party, and (iiB) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (cz) the indemnifying indemnified party will have no liability with respect to any compromise or settlement of such claims effected without its consentConsent (which may not be unreasonably withheld). If notice is given to an indemnifying party chooses to defend or prosecute a third-party claim, the indemnified party shall cooperate in the defense or prosecution thereof, which cooperation shall include, to the extent reasonably requested by the indemnifying party, the retention, and the provision to indemnifying party, of records and information reasonably relevant to such third-party claim, and making employees available on a Claim mutually convenient basis to provide additional information and explanation of any materials provided thereunder. No indemnified party may settle or otherwise resolve any Proceeding, unless the indemnified party fully indemnifies the indemnifying party does not, within ten days after the indemnified party's notice is given, give notice in writing with respect to such liability in a manner satisfactory to the indemnifying party. No indemnifying party shall be liable under this Section 6.5 for any settlement, compromise or discharge effected without its Consent in respect of any claim for which indemnity may be sought hereunder. No indemnified party shall take any action the purpose of its election which is to assume prejudice the defense of such Claim, the indemnifying any claim subject to indemnification hereunder or to induce a third party will be bound by any determination with respect to said Claim or any compromise or settlement effected by the indemnified party unless it objects in good faith as assert a claim subject to whether such claim is properly within the scope of such indemnificationindemnification hereunder.
(c) Notwithstanding the foregoing, if an indemnified party reasonably determines in good faith that there is a reasonable probability that a Claim Proceeding may materially adversely affect it or its Related Persons other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or settle such ClaimProceeding, but the indemnifying party will not be bound by any determination have no liability for the purposes of a Claim so defended this Agreement or any compromise or settlement effected without its consent Consent (which may not be unreasonably withheld). In the event that TWC Shareholders assume the defense of a Claim under this Section 10.4, Anicom hereby agrees and endeavors to cooperate, and to cause TWC to cooperate, in all reasonable respects with TWC Shareholders as they may reasonably request, which cooperation shall include, without limitation, making available business records, tax filings, documents or other information of TWC pertaining to, and employees (including employee time) of TWC having personal knowledge of, the circumstances relating to such Claim.
Appears in 1 contract
Sources: Asset Purchase Agreement (Cohu Inc)
PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS. (a) Promptly after receipt by an indemnified party under Section 10.2 SECTION 9.02 or 10.3 9.03 of notice of a claim the commencement of any Proceeding against it (" Claim")it, such indemnified party shallwill, if a claim is to be made against an indemnifying party under such Sectionsection, give notice to the indemnifying party of the commencement of such Claimclaim, but the failure to notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party, except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the indemnified indemnifying party's failure to give receive such notice.
(b) If any Claim Proceeding referred to in Section 10.4(aSECTION 9.06(A) is made brought against an indemnified party and it the indemnified party gives notice to the indemnifying party of the commencement of such ClaimProceeding, the indemnifying party will, unless the Claim involves Taxes, will be entitled to participate in the defense of such Claim Proceeding and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Claim Proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Claim Proceeding and provide indemnification with respect to such ClaimProceeding), to assume the defense of such Claim Proceeding with counsel reasonably satisfactory to the indemnified party and, after notice from the indemnifying party to the indemnified party of its election to assume the defense of such ClaimProceeding, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under such Section this ARTICLE IX for any fees of other counsel or any other expenses with respect to the defense of such Claim Proceeding, in each case subsequently incurred by the indemnified party in connection with the defense of such ClaimProceeding, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a ClaimProceeding, (ai) it will be conclusively established for purposes of this Agreement that the claims made in that Claim Proceeding are within the scope of and subject to indemnification; (bii) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party's consent unless (iA) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other Claims that may be made against the indemnified party, and (ii) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (c) the indemnifying party will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of a Claim and the indemnifying party does not, within ten days after the indemnified party's notice is given, give notice to the indemnified party of its election to assume the defense of such Claim, the indemnifying party will be bound by any determination with respect to said Claim or any compromise or settlement effected by the indemnified party unless it objects in good faith as to whether such claim is properly within the scope of such indemnification.
(c) Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that a Claim may adversely affect it or its Related Persons other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or settle such Claim, but the indemnifying party will not be bound by any determination of a Claim so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In the event that TWC Shareholders assume the defense of a Claim under this Section 10.4, Anicom hereby agrees and endeavors to cooperate, and to cause TWC to cooperate, in all reasonable respects with TWC Shareholders as they may reasonably request, which cooperation shall include, without limitation, making available business records, tax filings, documents or other information of TWC pertaining to, and employees (including employee time) of TWC having personal knowledge of, the circumstances relating to such Claim.any
Appears in 1 contract
PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS. (a) Promptly after receipt by an indemnified party Indemnified Person under Section 10.2 8.2 or 10.3 Section 8.4 or AMT (in the case of any Proceeding which might give rise to an indemnification claim hereunder) of notice of a claim the commencement of any Proceeding against it (" Claim")it, such indemnified party shallor AMT will, if a claim is to be made against an indemnifying party under such Section, give notice to the indemnifying party (or, in the case of a Proceeding against AMT, to the party which could potentially become the indemnifying party) of the commencement of such Claimclaim, but the failure to notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party, except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the indemnified indemnifying party's failure to give such notice.
(b) If any Claim Proceeding referred to in Section 10.4(a8.7(a) is made brought against an indemnified party Indemnified Person or AMT and it gives notice to the indemnifying party of the commencement of such ClaimProceeding, the indemnifying party will, unless the Claim involves Taxes, will be entitled to participate in the defense of such Claim Proceeding and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Claim Proceeding and the indemnified party Indemnified Person or AMT determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party Indemnified Person or AMT of its financial capacity to defend such Claim Proceeding and fails to provide indemnification with respect to such ClaimProceeding within a reasonable period of time), to assume the defense of such Claim Proceeding with counsel reasonably satisfactory to the indemnified party Indemnified Person or AMT and, after notice from the indemnifying party to the indemnified party Indemnified Person or AMT of its election to assume the defense of such ClaimProceeding, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party Indemnified Person or AMT under such this Section 8 for any fees of other counsel or any other expenses with respect to the defense of such Claim Proceeding, in each case subsequently incurred by the indemnified party Indemnified Person or AMT in connection with the defense of such ClaimProceeding, other than reasonable costs of investigationinvestigation and participation. If the indemnifying party assumes the defense of a ClaimProceeding, (ai) subject to the following sentence, it will be conclusively established for purposes of this Agreement that the claims made in that Claim Proceeding are within the scope of and subject to indemnification; (bii) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified partyIndemnified Person's consent or AMT's consent, as the case may be, unless (iA) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other Claims claims that may be made against the indemnified partyIndemnified Person or AMT, and (iiB) the sole relief provided is monetary damages that does not exceed $50,000 in the aggregate and that are paid in full by the indemnifying party; and (ciii) the indemnifying party Indemnified Person or AMT will have no liability with respect to any compromise or settlement of such claims effected without its consent. Clause (i) of the immediately preceding sentence shall not apply if (a) AMT may incur any liability in connection with the Proceeding or (b) the indemnifying party may incur any liability in connection with the Proceeding (directly or indirectly through its direct or indirect investment in AMT) other than its obligation to indemnify an Indemnified Person or AMT pursuant to Section 8.7(a). If notice is given to an indemnifying party of a Claim the commencement of any Proceeding and the indemnifying party does not, within ten days 10 Business Days after the indemnified partyIndemnified Person's or AMT's notice is given, give notice to the indemnified party Indemnified Person or AMT of its election to assume the defense of such ClaimProceeding, the indemnifying party will be bound by any determination with respect made in such Proceeding (to said Claim the extent the indemnified party or AMT is entitled to indemnification), but shall not be bound by any compromise or settlement effected by the indemnified Indemnified Person or AMT without its consent unless the conditions set forth in (A) and (B) above in this Section 8.7(b) are met in such case with respect to the indemnifying party unless it objects in good faith as to whether such claim is properly within (instead of the scope of such indemnificationIndemnified Person or AMT).
(c) Notwithstanding the other provisions of this Article 8 (including Section 8.7(d)), AMT shall be primarily be responsible for defending and directing the defense of any Proceeding against it, provided that if any such Proceeding involves an action, event or occurrence which arose or occurred prior to Closing which could reasonably be expected to become the subject of an indemnification claim hereunder and the Board of Managers cannot agree on the defense strategy for such Proceeding, then such disagreement shall not constitute an Impasse (as defined in the Amended and Restated Limited Liability Company Agreement) and the defense of such Proceeding shall become the primary responsibility of the party which could potentially become the indemnifying party with respect to such claim, but nothing in this clause (c) shall negate any obligation that Seller or Seller Parent may have to indemnify an Indemnified Person pursuant to Section 8.7(a) for any diminution in value of the Member Interest.
(d) Notwithstanding the foregoing, but subject to Section 8.7(c), if an indemnified party Indemnified Person determines in good faith that there is a reasonable probability that a Claim Proceeding may adversely affect it or its Related Persons affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party Indemnified Person may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or settle such ClaimProceeding, but the indemnifying party will not be bound by any determination of a Claim Proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In the event that TWC Shareholders assume the defense of a Claim under this Section 10.4, Anicom hereby agrees and endeavors to cooperate, and to cause TWC to cooperate, in all reasonable respects with TWC Shareholders as they may reasonably request, which cooperation shall include, without limitation, making available business records, tax filings, documents or other information of TWC pertaining to, and employees (including employee time) of TWC having personal knowledge of, the circumstances relating to such Claim.
Appears in 1 contract
PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS. (a) Promptly after receipt by an indemnified party under Section 10.2 Sections 8.2 or 10.3 8.3 of notice of a claim the commencement of any Proceeding against it (" Claim")it, such indemnified party shallwill, if a claim is to be made against an indemnifying party under such Section, give notice to the indemnifying party of the commencement of such Claimclaim, but the failure to notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party, except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the indemnified party's ’s failure to give such notice.
(b) If any Claim Proceeding referred to in Section 10.4(a8.4(a) is made brought against an indemnified party and it gives notice to the indemnifying party of the commencement of such ClaimProceeding, the indemnifying party will, unless the Claim involves Taxes, be entitled to participate in the defense of such Claim Proceeding and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Claim Proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Claim Proceeding and provide indemnification with respect to such ClaimProceeding), to assume the defense of such Claim Proceeding with counsel satisfactory to the indemnified party and, after notice from the indemnifying party to the indemnified party of its election to assume the defense of such ClaimProceeding, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under such this Section 8 for any fees of other counsel or any other expenses with respect to the defense of such Claim Proceeding, in each case subsequently incurred by the indemnified party in connection with the defense of such ClaimProceeding, other than reasonable costs of investigation. Pending a final and binding determination of any such Proceeding, upon giving notice thereof to the indemnifying party, the indemnified party shall be entitled to set off any amount to which it may be entitled under this Section 8 against amounts otherwise payable or distributable by the indemnified party to the indemnifying party, including amounts distributable in respect of equity securities directly or indirectly owned by such indemnified party (such as in respect of trust shares of Compass Diversified Trust). If the indemnifying party assumes the defense of a ClaimProceeding, (ai) it will be conclusively established for purposes of this Agreement that the claims made in that Claim Proceeding are within the scope of and subject to indemnification; (bii) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party's ’s consent unless (iA) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other Claims claims that may be made against the indemnified party, and (iiB) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (ciii) the indemnifying indemnified party will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of a Claim the commencement of any Proceeding and the indemnifying party does not, within ten days after the indemnified party's ’s notice is given, give notice to the indemnified party of its election to assume the defense of such ClaimProceeding, the indemnifying party will be bound by any determination with respect to said Claim made in such Proceeding or any compromise or settlement effected by the indemnified party unless it objects in good faith as to whether such claim is properly within the scope of such indemnificationparty.
(c) Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that a Claim Proceeding may adversely affect it or its Related Persons Affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or settle such ClaimProceeding, but the indemnifying party will not be bound by any determination of a Claim Proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In .
(d) CGI and the event Seller hereby consent to the non-exclusive jurisdiction of any court in which a Proceeding is brought against any Indemnified Person for purposes of any claim that TWC Shareholders assume the defense of a Claim an Indemnified Person may have under this Section 10.4, Anicom hereby agrees and endeavors Agreement with respect to cooperatesuch Proceeding or the matters alleged therein, and to cause TWC to cooperate, in all reasonable respects agree that process may be served on Seller with TWC Shareholders as they may reasonably request, which cooperation shall include, without limitation, making available business records, tax filings, documents or other information of TWC pertaining to, and employees (including employee time) of TWC having personal knowledge of, the circumstances relating respect to such Claima claim anywhere in the world.
Appears in 1 contract
Sources: Stock and Note Purchase Agreement (Compass Group Diversified Holdings LLC)
PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS. (ai) Promptly Within 15 days after receipt by an indemnified party under Section 10.2 or 10.3 of notice of a claim the commencement of any proceeding against it (" Claim")to which the indemnification in this Section 15 relates, such indemnified party shall, if a claim is to be made against an indemnifying party under such SectionSection 15, give notice to the indemnifying party of the commencement of such Claimproceeding, but the failure to so notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party, except to the extent that the indemnifying party demonstrates that the defense of such action proceeding is materially prejudiced by the indemnified party's failure to give such notice.
(bii) If any Claim proceeding referred to in Section 10.4(aparagraph (i) above is made brought against an indemnified party and it gives notice to the indemnifying party of the commencement of such Claimproceeding, the indemnifying party will, unless the Claim involves Taxes, will be entitled to participate in the defense of such Claim proceeding and, to the extent that it wishes (wishes, unless (iA) the indemnifying party is also a party to such Claim proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, or (iiB) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Claim proceeding and provide indemnification with respect to such Claimproceeding), to assume the defense of such Claim proceeding with counsel reasonably satisfactory to the indemnified party and, after notice from the indemnifying party to the indemnified party of its election to assume the defense of such Claimproceeding, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under such Section 15 for any fees of other counsel or any other expenses with respect to the defense of such Claim proceeding, in each case subsequently incurred by the indemnified party in connection with the defense of such Claimproceeding, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a Claimproceeding, without reservation of rights, (aI) it will be conclusively established for purposes of this Agreement that the claims made in that Claim proceeding are within the scope of and subject to indemnification; (bII) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party's consent unless (i1) there is no finding or admission of any a violation of Legal Requirements laws by the indemnified person (or any affiliate thereof) or any violation of the rights of any Person entity or person and no effect on any other Claims claims that may be made against the indemnified party, and (ii2) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (cIII) the indemnifying party will have no liability with respect to any compromise or settlement of the claims underlying such claims proceeding effected without its consentconsent (which shall not be unreasonably withheld or delayed). If notice is given to an indemnifying party of a Claim the commencement of any proceeding and the indemnifying party does not, within ten thirty (30) business days after the indemnified party's notice is given, give notice to the indemnified party of its election to assume the defense of such Claimproceeding, the indemnifying party will be bound by any determination with respect to said Claim made in such proceeding or any compromise or settlement effected by the indemnified party unless it objects in good faith as to whether such claim is properly within the scope of such indemnificationparty.
(ciii) Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that a Claim proceeding may adversely affect it or its Related Persons affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, with respect to those issues, by notice to the indemnifying party, assume the exclusive right to defend, compromise, compromise or settle such Claimproceeding, but the indemnifying party will not be bound by any determination of a Claim proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheldwithheld or delayed). In the event that TWC Shareholders assume the defense of a Claim under this Section 10.4, Anicom hereby agrees and endeavors to cooperate, and to cause TWC to cooperate, in all reasonable respects with TWC Shareholders as they may reasonably request, which cooperation shall include, without limitation, making available business records, tax filings, documents or other information of TWC pertaining to, and employees (including employee time) of TWC having personal knowledge of, the circumstances relating to such Claim.
Appears in 1 contract
PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS. (a) Promptly Within thirty days after receipt by an indemnified party under Section 10.2 or 10.3 of notice of a claim the commencement of any proceeding against it (" Claim")to which the indemnification in this Section 10 *relates, such indemnified party shall, if a claim is to be made against an indemnifying party under such SectionSection 10, give notice to the indemnifying party of the commencement of such Claimproceeding, but the failure to so notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party, except to the extent that the indemnifying party demonstrates that the defense of such action proceeding is materially prejudiced by the indemnified party's failure to give such notice.
(b) If any Claim proceeding referred to in Section 10.4(aparagraph (a) above is made brought against an indemnified party and it gives notice to the indemnifying party of the commencement of such Claimproceeding, the indemnifying party will, unless the Claim involves Taxes, will be entitled to participate in the defense of such Claim proceeding and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Claim proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Claim proceeding and provide indemnification with respect to such Claimproceeding), to assume the defense of such Claim proceeding with counsel reasonably satisfactory to the indemnified party and, after notice from the indemnifying party to the indemnified party of its election to assume the defense of such Claimproceeding, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under such Section 11 for any fees of other counsel or any other expenses with respect to the defense of such Claim proceeding, in each case subsequently incurred by the indemnified party in connection with the defense of such Claimproceeding, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a Claimproceeding, (aA) it will be conclusively established for purposes of this Agreement that the claims made in that Claim proceeding are within the scope of and subject to indemnification; (bB) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party's consent unless (i1) there is no finding or admission of any violation of Legal Requirements Law by the indemnified party (or any affiliate thereof) or any violation of the rights of any Person and no effect on any other Claims claims that may be made against the indemnified party, and (ii2) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (c) the indemnifying . The indemnified party will have no liability with respect to any compromise or settlement of the claims underlying such claims proceeding effected without its consent. If notice is given to an indemnifying party of a Claim the commencement of any proceeding and the indemnifying party does not, within ten days after the indemnified party's notice is given, give notice to the indemnified party of its election to assume the defense of such Claimproceeding, the indemnifying party will be bound by any determination with respect to said Claim made in such proceeding or any compromise or settlement effected by the indemnified party unless it objects in good faith as to whether such claim is properly within the scope of such indemnificationparty.
(c) Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that a Claim proceeding may adversely affect it or its Related Persons affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, with respect to those issues, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or settle such Claimproceeding, but the indemnifying party will not be bound by any determination of a Claim proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In the event that TWC Shareholders assume the defense of a Claim under this Section 10.4, Anicom hereby agrees and endeavors to cooperate, and to cause TWC to cooperate, in all reasonable respects with TWC Shareholders as they may reasonably request, which cooperation shall include, without limitation, making available business records, tax filings, documents or other information of TWC pertaining to, and employees (including employee time) of TWC having personal knowledge of, the circumstances relating to such Claimconsent.
Appears in 1 contract
Sources: Contribution Agreement (Pennsylvania Real Estate Investment Trust)
PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS. (a) 10.6.1. Promptly after receipt by an indemnified party Indemnified Person under Section Sections 10.2 or 10.3 10.3, of notice of a claim the commencement of any Proceeding against it (" Claim")it, such indemnified party shallIndemnified Person will, if a claim is to be made by it against an indemnifying party under such Section, give notice to the indemnifying party of the commencement of such Claimclaim, but the and with such notice provide a copy of any demand letter, summons or applicable correspondence, and any information with respect to insurance which may cover such claim and information with respect to any third party who may be liable to in connection therewith. The failure to notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified partyIndemnified Person, except to the extent that the indemnifying party demonstrates that the defense of such action it is prejudiced by the indemnified indemnifying party's failure to give such notice.
(b) 10.6.2. If any Claim Proceeding referred to in Section 10.4(a) 10.6.1 is made brought against an indemnified party Indemnified Person and it or he gives notice to the indemnifying party of the commencement of such ClaimProceeding, the indemnifying party will, unless the Claim claim involves Taxestaxes, be entitled to participate in the defense of such Claim Proceeding and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Claim Proceeding and the indemnified party Indemnified Person determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party Indemnified Person of its financial capacity to defend such Claim Proceeding and provide indemnification with respect to such ClaimProceeding), to assume the defense of such Claim Proceeding with counsel reasonably satisfactory to the indemnified party Indemnified Person and, after notice from the indemnifying party to the indemnified party Indemnified Person of its election to assume the defense of such ClaimProceeding, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party Indemnified Person under such this Section 10 for any fees of other counsel or any other expenses with respect to the defense of such Claim Proceeding, in each case subsequently incurred by the indemnified party Indemnified Person in connection with the defense of such ClaimProceeding, other than reasonable out of pocket costs of investigation. If the indemnifying party assumes the defense of a ClaimProceeding, (ai) it will be conclusively established for purposes of this Agreement that the claims made in that Claim Proceeding are within the scope of and subject to indemnification; (bii) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified partyIndemnified Person's consent unless (iA) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other Claims claims that may be made against the indemnified partyIndemnified Person, and (iiB) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (ciii) the indemnifying party Indemnified Person will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of a Claim the commencement of any Proceeding and the indemnifying party does not, within ten days after the indemnified partyIndemnified Person's notice is given, give notice to the indemnified party Indemnified Person of its election to assume the defense of such ClaimProceeding, the indemnifying party will be bound by any determination with respect to said Claim made in such Proceeding or any compromise or settlement effected by the indemnified party unless it objects in good faith as to whether such claim is properly within Indemnified Person except that the scope of such indemnification.
(c) Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that a Claim may adversely affect it or its Related Persons other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or settle such Claim, but Indemnified Person shall give the indemnifying party will seven days prior notice of the terms of any proposed settlement and the Indemnified Person shall not be bound by liable to the extent that any determination of a Claim so defended Proceeding is conducted in, or any the compromise or settlement effected without its consent (which may not be unreasonably withheld)is entered into in bad faith. In the event that TWC Shareholders assume the defense of a Claim under this Section 10.4, Anicom hereby agrees and endeavors to cooperate, and to cause TWC to cooperate, in all reasonable respects with TWC Shareholders as they may reasonably request, which cooperation shall include, without limitation, making available business records, tax filings, documents or other information of TWC pertaining to, and employees (including employee time) of TWC having personal knowledge of, the circumstances relating to such Claim10.6.
Appears in 1 contract
Sources: Merger Agreement (Davis Roger D)
PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS. (a) Promptly after receipt by an indemnified party under Section 10.2 or 10.3 of notice of the assertion of a claim or of the commencement of any Proceeding against it (" a "Claim"), such indemnified party shallwill, if a claim Claim is to be made against an indemnifying party under such Section, give notice to the indemnifying party of the commencement of such ClaimClaim (with a copy to the Secured Lenders and their counsel), but the failure to notify the indemnifying party (or to provide a copy to the Secured Lenders and their counsel) will not relieve the indemnifying party of any liability that it may have to any indemnified party, except to the extent that the indemnifying party 39 demonstrates that the defense of such action is prejudiced by the indemnified party's failure to give such notice. The indemnified party shall deliver to the indemnifying party (with a copy to the Secured Lenders and their counsel), within five business days after the indemnified party's receipt thereof, copies of all notices and documents (including court papers) received by the indemnified party relating to the Claim.
(b) If any Claim referred to in Section 10.4(a10.7(a) is made asserted or brought against an indemnified party and it gives notice to the indemnifying party of such the Claim, the indemnifying party will, unless (and the Claim involves Taxes, Secured Lenders) will be entitled to participate in the defense of such the Claim and, to the extent that it wishes they wish, exercisable by written notice to the indemnified party within 10 days of receipt of notice from the indemnified party of a Claim (unless (i) the indemnifying party (or any Secured Lender) is also a party to such a Proceeding involving a Claim and the indemnified party determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Claim and provide indemnification with respect to such Claim), to assume the defense of such Claim with counsel satisfactory to the indemnified party and, after such notice from the indemnifying party or the Secured Lenders to the indemnified party of its their election to assume the defense of such Claim, the indemnifying party (or the Secured Lenders) will not, as long as it diligently conducts such defense, be liable to the indemnified party under such Section this Article 10 for any fees of other counsel or any other expenses with respect to the defense of such Claim Claim, in each case subsequently incurred by the indemnified party in connection with the defense of such Claim, other than reasonable costs of investigationinvestigation or if the indemnified party has assumed the defense as provided in Section 10.7(c). In any event, the indemnified party shall have the right to participate in the defense of the Claim. If the indemnifying party assumes (or the Secured Lenders) assume the defense of a Claim, (ai) it will be conclusively established for purposes of this Agreement that the claims made in that Claim are within the scope of and subject to indemnification; (bii) no compromise or settlement of such claims Claims may be effected by the indemnifying party (or the Secured Lenders) without the indemnified party's consent unless (iA) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other Claims claims that may be made against the indemnified party, and (iiB) the sole relief provided is monetary damages that are paid in full by the indemnifying partyparty (or the Secured Lenders); and (ciii) the indemnifying indemnified party will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party (and the Secured Lenders) of the assertion of or commencement of any Proceeding involving a Claim and the indemnifying party does (or the Secured Lenders) do not, within ten days after the indemnified party's notice is given, give notice to the indemnified party of its their election to assume the defense of such Claim, the indemnified party shall have the right to undertake the defense of such claim on behalf of the indemnifying party and the indemnifying party (and, if applicable, the Secured Lenders) will be bound by any determination with respect to said Claim made in such Proceeding or any compromise or settlement effected by the indemnified party unless it objects in good faith as to whether such claim is properly within the scope of such indemnificationparty.
(c) Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that a Claim may adversely affect it or its Related Persons affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying partyparty (with a copy to the Secured Lenders and their counsel), assume the exclusive right to defend, compromise, or settle such Claim, Claim but the indemnifying party will not be bound by any determination of a Claim so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In .
(d) Each indemnifying party hereby consents to the event that TWC Shareholders assume the defense non-exclusive jurisdiction of any court in which a Claim is brought against any indemnified party for purposes of any claim that an indemnified party may have under this Section 10.4, Anicom hereby agrees and endeavors Agreement with respect to cooperatesuch Claim or the matters alleged therein, and to cause TWC to cooperate, in all reasonable respects agrees that process may be served on the indemnifying party with TWC Shareholders as they may reasonably request, which cooperation shall include, without limitation, making available business records, tax filings, documents or other information of TWC pertaining to, and employees (including employee time) of TWC having personal knowledge of, the circumstances relating respect to such Claima Claim anywhere in the world provided a reasonable period of time is allowed to respond to such process.
Appears in 1 contract
PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS. (a) Promptly after receipt by an indemnified party under Section 10.2 Sections 10.2, 10.3 or 10.3 10.4, of notice of a claim the commencement of any Proceeding against it (" Claim")it, such indemnified party shallwill, if a claim is to be made against an indemnifying party under such Section, give notice to the indemnifying party of the commencement of such Claimclaim, but the failure to notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party, except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the indemnified indemnifying party's failure to give such notice.
(b) If any Claim Proceeding referred to in Section 10.4(a10.8(a) is made brought against an indemnified party and it gives notice to the indemnifying party of the commencement of such ClaimProceeding, the indemnifying party will, unless the Claim involves Taxes, will be entitled to participate in the defense of such Claim Proceeding and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Claim Proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Claim Proceeding and provide indemnification with respect to such ClaimProceeding), to assume the defense of such Claim Proceeding with counsel satisfactory to the indemnified party and, after notice from the indemnifying party to the indemnified party of its election to assume the defense of such ClaimProceeding, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under such this Section 10 for any fees of other counsel or any other expenses with respect to the defense of such Claim Proceeding, in each case subsequently incurred by the indemnified party in connection with the defense of such ClaimProceeding, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a ClaimProceeding, (a) it will be conclusively established for purposes of this Agreement that the claims made in that Claim are within the scope of and subject to indemnification; (bi) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party's consent unless (iA) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other Claims claims that may be made against the indemnified party, and (iiB) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (cii) the indemnifying indemnified party will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of a Claim the commencement of any Proceeding and the indemnifying party does not, within ten thirty days after the indemnified party's notice is given, give notice to the indemnified party of its election to assume the defense of such ClaimProceeding, the indemnifying party will be bound by any determination with respect to said Claim made in such Proceeding or any compromise or settlement effected by the indemnified party unless it objects in good faith as to whether such claim is properly within the scope of such indemnificationparty.
(c) Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that a Claim Proceeding may adversely affect it or its Related Persons affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or settle such ClaimProceeding, but the indemnifying party will not be bound by any determination of a Claim Proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In .
(d) Sellers hereby consent to the event non-exclusive jurisdiction of any court in which a Proceeding is brought against any Indemnified Person for purposes of any claim that TWC Shareholders assume the defense of a Claim an Indemnified Person may have under this Section 10.4, Anicom hereby agrees and endeavors Agreement with respect to cooperatesuch Proceeding or the matters alleged therein, and to cause TWC to cooperate, in all reasonable respects agree that process may be served on Sellers with TWC Shareholders as they may reasonably request, which cooperation shall include, without limitation, making available business records, tax filings, documents or other information of TWC pertaining to, and employees (including employee time) of TWC having personal knowledge of, the circumstances relating respect to such Claima claim anywhere in the world.
Appears in 1 contract
Sources: Stock Purchase Agreement (Insignia Financial Group Inc)
PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS. 51
(a) Promptly after receipt by an indemnified party under Section 10.2 11.2 or 10.3 11.3 of notice of a claim the commencement of any Proceeding against it (" Claim")it, such indemnified party shallwill, if a claim is to be made against an indemnifying party under such Section, give notice to the indemnifying party of the commencement of such Claimclaim, but the failure to notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party, except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the indemnified indemnifying party's ’s failure to give such notice.
(b) If any Claim Proceeding referred to in Section 10.4(a11.6(a) is made brought against an indemnified party and it gives notice to the indemnifying party of the commencement of such ClaimProceeding, the indemnifying party will, unless the Claim involves Taxes, be entitled to may participate in the defense of such Claim Proceeding and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Claim Proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Claim Proceeding and provide indemnification with respect to such Claim), Proceeding) to assume the defense of such Claim Proceeding with counsel reasonably satisfactory to the indemnified party and, after notice from the indemnifying party to the indemnified party of its election to assume the defense of such ClaimProceeding, the indemnifying party will shall not, as long as it diligently conducts such defense, be liable to the indemnified party under such Section this Article XI for any fees of other counsel or any other expenses with respect to the defense of such Claim Proceeding, in each case subsequently incurred by the indemnified party in connection with the defense of such ClaimProceeding, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a ClaimProceeding, (ai) it will be conclusively established for purposes of this Agreement that the claims made in that Claim Proceeding are within the scope of and subject to indemnification; (bii) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party's ’s consent unless (iA) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other Claims claims that may be made against the indemnified party, and (iiB) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (ciii) the indemnifying indemnified party will have no liability not be liable with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of a Claim the commencement of any Proceeding and the indemnifying party does not, within ten 20 days after the indemnified party's ’s notice is given, give notice to the indemnified party of its election to assume the defense of such ClaimProceeding, the indemnifying party will be bound by any determination with respect to said Claim made in such Proceeding or any compromise or settlement effected by the indemnified party unless it objects in good faith as to whether such claim is properly within the scope of such indemnificationparty.
(c) Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that a Claim Proceeding may adversely affect it or its Related Persons affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or settle such ClaimProceeding, but the indemnifying party will not be bound by any determination of a Claim Proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In .
(d) Seller and Buyer hereby consent to the event non-exclusive jurisdiction of any court in which a Proceeding is brought against any Indemnified Person for purposes of any claim that TWC Shareholders assume the defense of a Claim an Indemnified Person may have under this Section 10.4, Anicom hereby agrees and endeavors Agreement with respect to cooperatesuch Proceeding or the matters alleged therein, and to cause TWC to cooperateagree that process may be served on Seller or Buyer, in all reasonable respects as the case may be, with TWC Shareholders as they may reasonably request, which cooperation shall include, without limitation, making available business records, tax filings, documents or other information of TWC pertaining to, and employees (including employee time) of TWC having personal knowledge of, the circumstances relating respect to such Claima claim anywhere in the world.
Appears in 1 contract
PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS. (a) Promptly after receipt by an indemnified party under Section 10.2 9.2, 9.3 or 10.3 9.4 of notice of a claim the commencement of any Action against it (" Claim")it, such indemnified party shallwill, if a claim is to be made against an indemnifying party under such Section, give notice (including the facts and circumstance known at such time relating to the Action) to the indemnifying party of the commencement of such Claimclaim, but the failure to notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party, except to the extent that the indemnifying party demonstrates that the defense of such action is materially prejudiced by the indemnified indemnifying party's ’s failure to give such notice.
(b) If any Claim Action referred to in Section 10.4(a9.5(a) is made brought against an indemnified party and it gives notice to the indemnifying party of the commencement of such ClaimAction, the indemnifying party will, unless the Claim involves Taxes, will be entitled to participate in the defense of such Claim Action and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Claim Action and the indemnified party determines in good faith upon the advice of outside counsel that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Claim Action and provide indemnification with respect to such ClaimAction), to assume the defense of such Claim with counsel satisfactory to the indemnified party Action and, after notice from the indemnifying party to the indemnified party of its election to assume the defense of such ClaimAction, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under such Section this Article 9 for any fees of other counsel or any other expenses with respect to the defense of such Claim Action, in each case subsequently incurred by the indemnified party in connection with the defense of such Claim, other than reasonable costs of investigationAction. If the indemnifying party assumes the defense of a Claiman Action, (ai) it will be conclusively established for purposes of this Agreement that the claims made in that Claim Action are within the scope of and subject to indemnification; (bii) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party's ’s consent unless (iA) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other Claims claims that may be made against the indemnified party, and (iiB) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (ciii) the indemnifying indemnified party will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of a Claim the commencement of any Action and the indemnifying party does not, within ten calendar days after the indemnified party's ’s notice is given, give notice to the indemnified party of its election to assume the defense of such ClaimAction, the indemnifying party party, to the extent it is obligated pursuant to this Agreement, will be bound by any determination with respect to said Claim made in such Action or any compromise or settlement effected by the indemnified party unless it objects in good faith as to whether such claim is properly within the scope of such indemnificationparty.
(c) Notwithstanding the foregoing, if an indemnified party determines in good faith and at the advice of outside counsel that there is a reasonable probability that a Claim an Action may adversely affect it it’s or its Related Persons Affiliates’ ability to carry out its business operations other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or settle such ClaimAction, but the indemnifying party will not be bound by any determination of a Claim an Action so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In the event that TWC Shareholders assume the defense of a Claim under this Section 10.4, Anicom hereby agrees and endeavors to cooperate, and to cause TWC to cooperate, in all reasonable respects with TWC Shareholders as they may reasonably request, which cooperation shall include, without limitation, making available business records, tax filings, documents or other information of TWC pertaining to, and employees (including employee time) of TWC having personal knowledge of, the circumstances relating to such Claim.
Appears in 1 contract
PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS. (a) Promptly after receipt by an indemnified party under Section 10.2 or 10.3 of notice of a claim the commencement of any proceeding against it (" Claim")it, such indemnified party shallwill, if a claim is to be made against an indemnifying party under such Sectionparty, give notice to the indemnifying party of the commencement of such Claimclaim, but the failure to notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party, except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the indemnified indemnifying party's failure to give such notice.
(b) If any Claim proceeding referred to in Section 10.4(a6.5(a) is made brought against an indemnified party and it gives notice to the indemnifying party of the commencement of such Claimproceeding, the indemnifying party will, unless the Claim claim involves Taxes, be entitled to participate in the defense of such Claim proceeding and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Claim proceeding and the indemnified party reasonably determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Claim proceeding and provide indemnification with respect to such Claimproceeding), to assume the defense of such Claim proceeding with counsel reasonably satisfactory to the indemnified party and, after notice from the indemnifying party to the indemnified party of its election to assume the defense of such Claimproceeding, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under such Section this Article VI for any fees of other counsel or any other expenses with respect to the defense of such Claim proceeding, in each case subsequently incurred by the indemnified party in connection with the defense of such Claimproceeding, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a Claimproceeding, (ai) it will be conclusively established for purposes of this Agreement that the claims made in that Claim proceeding are within the scope of and subject to indemnification; (bii) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party's consent unless (iA) there is no finding or admission of any violation of Legal Requirements law or any violation of the rights of any Person person and no effect on any other Claims claims that may be made against the indemnified party, and (iiB) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (ciii) the indemnifying indemnified party will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of a Claim the commencement of any proceeding and the indemnifying party does not, within ten fifteen days after the indemnified party's notice is given, give notice to the indemnified party of its election to assume the defense of such Claimproceeding, the indemnifying party will be bound by any determination with respect to said Claim made in such proceeding or any compromise or settlement effected by the indemnified party unless it objects in good faith as to whether such claim is properly within which the scope of such indemnificationindemnifying party consents, which consent may not be unreasonably withheld.
(c) Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that a Claim proceeding may adversely affect it or its Related Persons affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or settle such Claimproceeding, but the indemnifying party will not be bound by any determination of a Claim proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In the event that TWC Shareholders assume the defense of a Claim under this Section 10.4, Anicom hereby agrees and endeavors to cooperate, and to cause TWC to cooperate, in all reasonable respects with TWC Shareholders as they may reasonably request, which cooperation shall include, without limitation, making available business records, tax filings, documents or other information of TWC pertaining to, and employees (including employee time) of TWC having personal knowledge of, the circumstances relating to such Claim.
Appears in 1 contract
PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS. (a) Promptly after receipt by an indemnified party under Section 10.2 or 10.3 10.4, of notice of a claim the commencement of any Proceeding against it (" Claim")it, such indemnified party shallwill, if a claim is to be made against an indemnifying party under such Section, give notice to the indemnifying party of the commencement of such Claimclaim, but the failure to notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party, except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the indemnified indemnifying party's failure to give such notice.
(b) If any Claim Proceeding referred to in Section 10.4(a10.6(a) is made brought against an indemnified party and it gives notice to the indemnifying party of the commencement of such ClaimProceeding, the indemnifying party will, unless the Claim involves Taxes, will be entitled to participate in the defense of such Claim Proceeding and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Claim Proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Claim Proceeding and provide indemnification with respect to such ClaimProceeding), to assume the defense of such Claim Proceeding with counsel satisfactory to the indemnified party and, after notice from the indemnifying party to the indemnified party of its election to assume the defense of such ClaimProceeding, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under such this Section 10 for any fees of other counsel or any other expenses with respect to the defense of such Claim Proceeding, in each case subsequently incurred by the indemnified party in connection with the defense of such ClaimProceeding, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a ClaimProceeding, (ai) it will be conclusively established for purposes of this Agreement that the claims made in that Claim Proceeding are within the scope of and subject to indemnification; (bii) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party's consent unless (iA) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other Claims claims that may be made against the indemnified party, and (iiB) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (ciii) the indemnifying indemnified party will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of a Claim the commencement of any Proceeding and the indemnifying party does not, within ten days after the indemnified party's notice is given, give notice to the indemnified party of its election to assume the defense of such ClaimProceeding, the indemnifying party will be bound by any determination with respect to said Claim made in such Proceeding or any compromise or settlement effected by the indemnified party unless it objects in good faith as to whether such claim is properly within the scope of such indemnificationparty.
(c) Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that a Claim Proceeding may adversely affect it or its Related Persons affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or settle such ClaimProceeding, but the indemnifying party will not be bound by any determination of a Claim Proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In .
(d) Sellers hereby consent to the event non-exclusive jurisdiction of any court in which a Proceeding is brought against any Indemnified Person for purposes of any claim that TWC Shareholders assume the defense of a Claim an Indemnified Person may have under this Section 10.4, Anicom hereby agrees and endeavors Agreement with respect to cooperatesuch Proceeding or the matters alleged therein, and to cause TWC to cooperate, in all reasonable respects agree that process may be served on Sellers with TWC Shareholders as they may reasonably request, which cooperation shall include, without limitation, making available business records, tax filings, documents or other information of TWC pertaining to, and employees (including employee time) of TWC having personal knowledge of, the circumstances relating respect to such Claima claim anywhere in the world.
Appears in 1 contract
Sources: Stock Purchase Agreement (Home Products International Inc)
PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS. (a) Promptly Within thirty days after receipt by an indemnified party under Section 10.2 or 10.3 of notice of a claim the commencement of any proceeding against it (" Claim")to which the indemnification in this Section 10 relates, such indemnified party shall, if a claim is to be made against an indemnifying party under such SectionSection 10, give notice to the indemnifying party of the commencement of such Claimproceeding, but the failure to so notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party, except to the extent that the indemnifying party party, demonstrates that the defense of such action proceeding is materially prejudiced by the indemnified party's failure to give such notice.
(b) If any Claim proceeding referred to in Section 10.4(aparagraph (a) above is made brought against an indemnified party and it gives notice to the indemnifying party of the commencement of such Claimproceeding, the indemnifying party will, unless the Claim involves Taxes, will be entitled to participate in the defense of such Claim proceeding and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Claim proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Claim proceeding and provide indemnification with respect to such Claimproceeding), to assume the defense of such Claim proceeding with counsel reasonably satisfactory to the indemnified party and, after notice from the indemnifying party to the indemnified party of its election to assume the defense of such Claimproceeding, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under such Section 10 for any fees of other counsel or any other expenses with respect to the defense of such Claim proceeding, in each case subsequently incurred by the indemnified party in connection with the defense of such Claimproceeding, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a Claimproceeding, (aA) it will be conclusively established for purposes of this Agreement that the claims made in that Claim proceeding are within the scope of and subject to indemnification; (bB) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party's consent unless (il) there is no finding or admission of any violation of Legal Requirements Law by the indemnified party (or any affiliate thereof) or any violation of the rights of any Person and no effect on any other Claims claims that may be made against the indemnified party, and (ii2) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (c) the indemnifying . The indemnified party will have no liability with respect to any compromise or settlement of the claims underlying such claims proceeding effected without its consent. If notice is given to an indemnifying party of a Claim the commencement of any proceeding and the indemnifying party does not, within ten days after the indemnified party's notice is given, give notice to the indemnified party of its election to assume the defense of such Claimproceeding, the indemnifying party will be bound by any determination with respect to said Claim made in such proceeding or any compromise or settlement effected by the indemnified party unless it objects in good faith as to whether such claim is properly within the scope of such indemnificationparty.
(c) Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that a Claim proceeding may adversely affect it or its Related Persons affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, with respect to those issues, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or settle such Claimproceeding, but the indemnifying party will not be bound by any determination of a Claim proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In the event that TWC Shareholders assume the defense of a Claim under this Section 10.4, Anicom hereby agrees and endeavors to cooperate, and to cause TWC to cooperate, in all reasonable respects with TWC Shareholders as they may reasonably request, which cooperation shall include, without limitation, making available business records, tax filings, documents or other information of TWC pertaining to, and employees (including employee time) of TWC having personal knowledge of, the circumstances relating to such Claimconsent.
Appears in 1 contract
Sources: Contribution Agreement (Pennsylvania Real Estate Investment Trust)
PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS. (a) Promptly after receipt by an indemnified party under Section 10.2 or 10.3 of If a Person receives notice of a claim the commencement any Proceeding against it (" Claim")which might give any party indemnification rights under this Section 10, then promptly thereafter such indemnified party shallPerson will, if a claim is to thus be made against an indemnifying party under such Sectionparty, give notice to the indemnifying such party of the commencement of such ClaimProceeding, but the failure to notify the indemnifying such party will not relieve the indemnifying party this Person of any liability that it may have to any indemnified such party, except to the extent that the indemnifying this party demonstrates that the defense of such action is prejudiced by the indemnified indemnifying party's failure to give such notice.
(b) Except with respect to any Proceeding relating to a Breach of Section 3.19 or the indemnification obligation of Section 10.3:
(i) If any Claim Proceeding referred to in Section 10.4(a10.9(a) is made brought against an indemnified party and it gives timely notice to the indemnifying party of the commencement of such ClaimProceeding, the indemnifying party will, unless the Claim involves Taxes, will be entitled to participate in the defense of such Claim Proceeding and, to the extent that it wishes (unless (iA) the indemnifying party is also a party to such Claim Proceeding and the indemnified party determines in good faith that joint representation would be inappropriateresult in a conflict of interests preventing such joint representation, or (iiB) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Claim Proceeding and provide indemnification with respect to such ClaimProceeding), to assume the defense of such Claim Proceeding with counsel reasonably satisfactory to the indemnified party and, after notice from the indemnifying party to the indemnified party of its election to assume the defense of such ClaimProceeding, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under such this Section 10 for any fees of other counsel or any other expenses with respect to the defense of such Claim Proceeding, in each case subsequently incurred by the indemnified party in connection with the defense of such ClaimProceeding, other than reasonable costs of investigation. .
(ii) If the indemnifying party assumes the defense of a ClaimProceeding, (a) it will be conclusively established for purposes of this Agreement that the claims made in that Claim are within the scope of and subject to indemnification; (bA) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party's consent unless (i1) there is no finding or admission of any violation of Legal Requirements or any material violation of the rights of any Person and no effect on any other Claims that may be made against the indemnified party, and (ii) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (c) the indemnifying party will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of a Claim and the indemnifying party does not, within ten days after the indemnified party's notice is given, give notice to the indemnified party of its election to assume the defense of such Claim, the indemnifying party will be bound by any determination with respect to said Claim or any compromise or settlement effected by the indemnified party unless it objects in good faith as to whether such claim is properly within the scope of such indemnification.
(c) Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that a Claim may adversely affect it or its Related Persons other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or settle such Claim, but the indemnifying party will not be bound by any determination of a Claim so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In the event that TWC Shareholders assume the defense of a Claim under this Section 10.4, Anicom hereby agrees and endeavors to cooperate, and to cause TWC to cooperate, in all reasonable respects with TWC Shareholders as they may reasonably request, which cooperation shall include, without limitation, making available business records, tax filings, documents or other information of TWC pertaining to, and employees (including employee time) of TWC having personal knowledge of, the circumstances relating to such Claim.any
Appears in 1 contract
Sources: Merger Agreement (Packaged Ice Inc)
PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS. (a) Promptly after receipt by an indemnified party under Section 10.2 or 10.3 of notice of a claim the commencement of any Proceeding against it (" Claim")by a third party, such indemnified party shallwill, if a claim is to be made against an indemnifying party 50 under such Section, give notice to the indemnifying party of the commencement of such Claimclaim, but the failure to notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party, except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the indemnified party's failure to give such notice.
(b) If any Claim referred to in Section 10.4(a) Proceeding is made brought by a third party against an indemnified party and it gives notice to the indemnifying party of the commencement of such ClaimProceeding, the indemnifying party will, unless the Claim claim involves Taxes, be entitled to participate in the defense of such Claim and, Proceeding to the extent that it wishes (unless (i) the indemnifying party is also a party to such Claim Proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, inappropriate or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Claim Proceeding and provide indemnification with respect to such Claim), Proceeding or to assume the defense of such Claim Proceeding with counsel satisfactory to the indemnified party and, after party. After notice from the indemnifying party to the indemnified party of its election to assume the defense of such ClaimProceeding, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under such Section this Article 11 for any fees of other counsel or any other expenses with respect to the defense of such Claim Proceeding in each case subsequently incurred by the indemnified party in connection with the defense of such ClaimProceeding, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a ClaimProceeding, (ai) it will be conclusively established for purposes of this Agreement that the claims made in that Claim Proceeding are within the scope of and subject to indemnification; (bii) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party's consent unless (iA) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other Claims claims that may be made against the indemnified party, party and (iiB) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (ciii) the indemnifying indemnified party will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of a Claim the commencement of any Proceeding and the indemnifying party does not, within ten 30 days after the indemnified party's such notice is given, give notice to the indemnified party of its election to assume the defense of such ClaimProceeding, the indemnifying party will be bound by any determination with respect to said Claim made in such Proceeding or any compromise or settlement effected by the indemnified party unless it objects in good faith as to whether such claim is properly within the scope of such indemnificationparty.
(c) Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that a Claim Proceeding may adversely affect it or its Related Persons affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume join in the exclusive right to defend, compromise, compromise or settle such ClaimProceeding, but the indemnifying party will not be bound by any determination of a Claim Proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In .
(d) Seller and Shareholder hereby consent to the event non-exclusive jurisdiction of any court of competent jurisdiction located in the State of New York for purposes of any claim that TWC Shareholders assume the defense of a Claim an Indemnified Person may have under this Section 10.4, Anicom hereby agrees and endeavors Agreement with respect to cooperatesuch Proceeding or the matters alleged therein, and to cause TWC to cooperate, in all reasonable respects agree that process may be served on Seller with TWC Shareholders as they may reasonably request, which cooperation shall include, without limitation, making available business records, tax filings, documents or other information of TWC pertaining to, and employees (including employee time) of TWC having personal knowledge of, the circumstances relating respect to such Claima claim anywhere in the world.
Appears in 1 contract
Sources: Acquisition Agreement (Production Resource Group LLC)
PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS. (a) Promptly after receipt by an indemnified party under Section 10.2 or 10.3 of If a Person receives notice of a claim the commencement any Proceeding against it (" Claim")which might give any party indemnification rights under this Section 10, then promptly thereafter such indemnified party shallPerson will, if a claim is to thus be made against an indemnifying party under such Sectionparty, give notice to the indemnifying such party of the commencement of such ClaimProceeding, but the failure to notify the indemnifying such party will not relieve the indemnifying party this Person of any liability that it may have to any indemnified such party, except to the extent that the indemnifying this party demonstrates that the defense of such action is prejudiced by the indemnified indemnifying party's failure to give such notice.
(b) If any Claim Proceeding referred to in Section 10.4(a10.10(a) is made brought against an indemnified party and it gives notice to the indemnifying party of the commencement of such ClaimProceeding, the indemnifying party will, unless the Claim involves Taxes, will be entitled to participate in the defense of such Claim Proceeding and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Claim Proceeding and the indemnified party determines in good faith that joint representation would be inappropriateresult in a conflict of interests preventing such joint representation, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Claim Proceeding and provide indemnification with respect to such ClaimProceeding), to assume the defense of such Claim Proceeding with counsel reasonably satisfactory to the indemnified party and, after notice from the indemnifying party to the indemnified party of its election to assume the defense of such ClaimProceeding, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under such this Section 10 for any fees of other counsel or any other expenses with respect to the defense of such Claim Proceeding, in each case subsequently incurred by the indemnified party in connection with the defense of such ClaimProceeding, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a ClaimProceeding, (a) it will be conclusively established for purposes of this Agreement that the claims made in that Claim are within the scope of and subject to indemnification; (bi) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party's consent unless (iA) there is no finding or admission of any violation of Legal Requirements or any material violation of the rights of any Person and no material effect on any other Claims claims that may be made against the indemnified party, and (iiB) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (cii) the indemnifying indemnified party will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of a Claim and the indemnifying party does not, within ten days after the indemnified party's notice is given, give notice not undertake to defend such matter to which the indemnified party of its election to assume the defense of such Claim, the indemnifying party will be bound by any determination with respect to said Claim or any compromise or settlement effected by the indemnified party unless it objects in good faith as to whether such claim is properly within the scope of such indemnification.
(c) Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that a Claim may adversely affect it or its Related Persons other than as a result of monetary damages for which it would be entitled to indemnification under this Agreementhereunder within 10 days after receiving notice of the Proceeding's commencement, the indemnified party may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or settle such Claim, but the indemnifying party will not be bound by any determination of a Claim so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In the event that TWC Shareholders assume the defense of a Claim under this Section 10.4, Anicom hereby agrees and endeavors to cooperate, and to cause TWC to cooperate, in all reasonable respects with TWC Shareholders as they may reasonably request, which cooperation shall include, without limitation, making available business records, tax filings, documents or other information of TWC pertaining to, and employees (including employee time) of TWC having personal knowledge of, the circumstances relating to such Claim.
Appears in 1 contract
Sources: Merger Agreement (Packaged Ice Inc)
PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS. (a) Promptly after receipt by an indemnified party under Section 10.2 10.2, 10.4, or (to the extent provided in the last sentence of Section 10.3) Section 10.3 of notice of a claim the commencement of any Proceeding against it (" Claim")it, such indemnified party shallwill, if a claim is to be made against an indemnifying party under such Section, give notice to the indemnifying party of the commencement of such Claimclaim, but the failure to notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party, except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the indemnified indemnifying party's failure to give such notice.
(b) If any Claim Proceeding referred to in Section 10.4(a10.8(a) is made brought against an indemnified party and it gives notice to the indemnifying party of the commencement of such ClaimProceeding, the indemnifying party will, unless the Claim claim involves Taxes, be entitled to participate in the defense of such Claim Proceeding and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Claim Proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Claim Proceeding and provide indemnification with respect to such ClaimProceeding), to assume the defense of such Claim Proceeding with counsel reasonably satisfactory to the indemnified party and, after notice from the indemnifying party to the indemnified party of its election to assume the defense of such ClaimProceeding, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under such this Section 10 for any fees of other counsel or any other expenses with respect to the defense of such Claim Proceeding, in each case subsequently incurred by the indemnified party in connection with the defense of such ClaimProceeding, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a ClaimProceeding, (ai) it will be conclusively established for purposes of this Agreement that the claims made in that Claim Proceeding are within the scope of and subject to indemnification; (bii) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party's consent unless (iA) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other Claims claims that may be made against the indemnified party, and (iiB) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (ciii) the indemnifying indemnified party will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of a Claim the commencement of any Proceeding and the indemnifying party does not, within ten days after the indemnified party's notice is given, give notice to the indemnified party of its election to assume the defense of such ClaimProceeding, the indemnifying party will be bound by any determination with respect to said Claim made in such Proceeding or any compromise or settlement effected by the indemnified party, absent gross negligence or willful misconduct on the part of the indemnified party. Notwithstanding the foregoing, the indemnified party unless it objects in good faith as such cases shall use its reasonable best efforts to whether such claim is properly within provide notice of material events in any Proceeding and attempt to obtain the scope consent of such indemnificationthe indemnifying party to any compromise or settlement.
(c) Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that a Claim Proceeding may adversely affect it or its Related Persons affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or settle such ClaimProceeding, but the indemnifying party will not be bound by any determination of a Claim Proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In .
(d) Sellers and Buyer hereby consent to the event non-exclusive jurisdiction of any court in which a Proceeding is brought against any Indemnified Person for purposes of any claim that TWC Shareholders assume the defense of a Claim an Indemnified Person may have under this Section 10.4, Anicom hereby agrees and endeavors Agreement with respect to cooperatesuch Proceeding or the matters alleged therein, and to cause TWC to cooperate, in all reasonable respects agree that process may be served on Sellers or Buyer with TWC Shareholders as they may reasonably request, which cooperation shall include, without limitation, making available business records, tax filings, documents or other information of TWC pertaining to, and employees (including employee time) of TWC having personal knowledge of, the circumstances relating respect to such Claima claim anywhere in the world.
Appears in 1 contract
Sources: Stock Purchase Agreement (Morrison Health Care Inc)
PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS. (a) Promptly after receipt by an indemnified party under Section 10.2 9.2 or 10.3 9.3, of notice of a claim the commencement of any Proceeding against it (" Claim")it, such indemnified party shallwill, if a claim is to be made against an indemnifying party under such Section, give notice to the indemnifying party of the commencement of such Claimclaim, but the failure to notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party, except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the indemnified indemnifying party's failure to give such notice.
(b) If any Claim Proceeding referred to in Section 10.4(a9.7(a) is made brought against an indemnified party and it gives notice to the indemnifying party of the commencement of such ClaimProceeding, the indemnifying party will, unless the Claim involves Taxes, will be entitled to participate in the defense of such Claim Proceeding and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Claim Proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Claim Proceeding and provide indemnification with respect to such ClaimProceeding), to assume the defense of such Claim Proceeding with counsel satisfactory to the indemnified party and, after notice from the indemnifying party to the indemnified party of its election to assume the defense of such Claim, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under such Section for any fees of other counsel or any other expenses with respect to the defense of such Claim in each case subsequently incurred by the indemnified party in connection with the defense of such Claim, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a Claim, (a) it will be conclusively established for purposes of this Agreement that the claims made in that Claim are within the scope of and subject to indemnification; (b) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party's consent unless (i) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other Claims that may be made against the indemnified party, and (ii) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (c) the indemnifying party will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of a Claim and the indemnifying party does not, within ten days after the indemnified party's notice is given, give notice to the indemnified party of its election to assume the defense of such Claim, the indemnifying party will be bound by any determination with respect to said Claim or any compromise or settlement effected by the indemnified party unless it objects in good faith as to whether such claim is properly within the scope of such indemnification.
(c) Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that a Claim may adversely affect it or its Related Persons other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or settle such Claim, but the indemnifying party will not be bound by any determination of a Claim so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In the event that TWC Shareholders assume the defense of a Claim under this Section 10.4, Anicom hereby agrees and endeavors to cooperate, and to cause TWC to cooperate, in all reasonable respects with TWC Shareholders as they may reasonably request, which cooperation shall include, without limitation, making available business records, tax filings, documents or other information of TWC pertaining to, and employees (including employee time) of TWC having personal knowledge of, the circumstances relating to such Claim.the
Appears in 1 contract
PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS. (a) Promptly after receipt by an indemnified party under Section 10.2 or 10.3 Indemnified Person of notice of the commencement of any action, arbitration, audit, hearing, investigation, litigation, or suit (whether civil, criminal, administrative, judicial or investigative, whether formal or informal, public or private) commenced, brought, conducted or heard by or before or otherwise involving any governmental body or arbitrator (a claim "Proceeding") against it (" Claim")it, such indemnified party shallIndemnified Person will, if a claim is to be made against an indemnifying a party obligated to provide indemnity under such Sectionthis Section 9, give notice to the indemnifying party parties of the commencement of such ClaimProceeding, but the failure of the Indemnified Person to notify the indemnifying party parties will not relieve the indemnifying party parties of any liability that it indemnifying parties may have to any indemnified partyIndemnified Persons, except to the extent that the indemnifying party demonstrates that the defense of such action is parties are materially prejudiced by the indemnified party's failure to give such notice.
(b) thereby. If any Claim referred to in Section 10.4(a) Proceeding is made brought against an indemnified party Indemnified Person and it the Indemnified Person gives notice to the indemnifying party parties of the commencement of such ClaimProceeding, the indemnifying party will, unless the Claim involves Taxes, parties will be entitled to participate in the defense of such Claim Proceeding and, to the extent that it wishes they wish (unless (i) the indemnifying party is parties are also a party parties to such Claim Proceeding and the indemnified party Indemnified Person determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails parties fail to provide reasonable assurance to the indemnified party Indemnified Persons of its their financial capacity to defend such Claim and provide indemnification with respect to such ClaimProceeding), to assume the defense of such Claim Proceeding with counsel satisfactory to the indemnified party Indemnified Persons and, after notice from the indemnifying party parties to the indemnified party Indemnified Persons of its their election to assume the defense of such Claim, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under such Section for any fees of other counsel or any other expenses with respect to the defense of such Claim in each case subsequently incurred by the indemnified party in connection with the defense of such Claim, other than reasonable costs of investigationProceeding. If the indemnifying party assumes parties assume the defense of a ClaimProceeding, (ai) it will be conclusively established for purposes of this Agreement that the claims made in that Claim Proceeding are within the scope of and subject to indemnification; and (bii) no compromise or settlement of such claims may be effected by the indemnifying party parties without the indemnified party's consent unless (i) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other Claims that may be made against the indemnified party, and (ii) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (c) the indemnifying party will have no liability with respect to any compromise or settlement of such claims effected without its Indemnified Persons' consent. If notice is given to an the indemnifying party parties of a Claim the commencement of any Proceeding and the indemnifying party does parties do not, within ten twenty (20) days after the indemnified party's Indemnified Persons' notice is given, give notice to the indemnified party Indemnified Persons of its their election to assume the defense of such ClaimProceeding, the indemnifying party parties will be bound by any determination with respect to said Claim made in such Proceeding or any compromise or settlement effected by the indemnified party unless it objects in good faith as Indemnified Persons. With respect to whether such claim is properly within any Proceeding both the scope of such indemnification.
(c) Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that a Claim may adversely affect it or its Related Indemnified Persons other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to and the indemnifying partyparties, assume as the exclusive right to defendcase may be, compromise, or settle such Claim, but shall keep the indemnifying party will not be bound by any determination other parties fully informed of a Claim so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In the event that TWC Shareholders assume the defense of a Claim under this Section 10.4, Anicom hereby agrees and endeavors to cooperate, Proceeding at all stages thereof and to cause TWC render to cooperate, in all reasonable respects with TWC Shareholders each other such assistance as they may reasonably request, which cooperation shall include, without limitation, making available business records, tax filings, documents or require of each other information and to cooperate in good faith with each other in order to ensure the proper and adequate defense of TWC pertaining to, and employees (including employee time) of TWC having personal knowledge ofany Proceeding brought by any third party. With respect to any Proceeding, the circumstances relating parties agree to cooperate in such Claima manner as to preserve in full (to the extent possible) the confidentiality of all confidential business records and the attorney-client and work-product privileges.
Appears in 1 contract
PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS. (a) Promptly after receipt by an An indemnified party under Section 10.2 or 10.3 of notice of a claim against it (" Claim"), such indemnified party shall, if a claim is to be made against an indemnifying party under such Section, shall promptly give notice to the each indemnifying party after obtaining knowledge of any matter as to which recovery may be sought against such Claim, but the failure to notify the indemnifying party will not relieve because of the indemnity set forth above, and, if such indemnity shall arise from the claim of a third party, shall permit such indemnifying party of any liability that it may have to any indemnified party, except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the indemnified party's failure to give such notice.
(b) If any Claim referred to in Section 10.4(a) is made against an indemnified party and it gives notice to the indemnifying party of such Claim, the indemnifying party will, unless the Claim involves Taxes, be entitled to participate in the defense of such Claim and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Claim and the indemnified party determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Claim and provide indemnification with respect to such Claim), to assume the defense of any such Claim with counsel satisfactory claim or any Proceeding resulting from such claim; provided, however, that failure to promptly give any such notice shall not affect the indemnification provided under this PARAGRAPH 7 except to the indemnified party and, after notice from the extent such indemnifying party to shall have been actually and materially prejudiced as a result of such failure. Notwithstanding the indemnified foregoing, an indemnifying party of its election to may not assume the defense of any such Claim, third-party claim or Proceeding if it does not demonstrate to the indemnifying party will not, as long as it diligently conducts such defense, be liable to reasonable satisfaction of the indemnified party under that it has adequate financial resources to defend such Section for claim or Proceeding and pay any fees and all damages that may result therefrom, or if the claim or Proceeding (i) could result in imprisonment of other counsel the indemnified party, (ii) could result in a criminal penalty or any other expenses with respect to the defense of such Claim in each case subsequently incurred by fine against the indemnified party in connection with the defense consequences of which would be reasonably likely to have a Material Adverse Effect on the indemnified party unrelated to the size of such Claimpenalty or fine or (iii) could result in an equitable remedy which would materially impair the indemnified party's ability to exercise its rights under this Agreement, other than reasonable costs of investigationor impair HSNS's right or ability to operate the Acquired Business. If the an indemnifying party assumes the defense of a Claimsuch third party claim or Proceeding, (a) such indemnifying party shall agree prior thereto, in writing, that it will be conclusively established for purposes of is liable under this Agreement that PARAGRAPH 7 to indemnify the claims made indemnified party in that Claim are within accordance with the scope of and subject to indemnification; (b) no compromise or settlement terms contained herein in respect of such claims claim or Proceeding, shall conduct such defense diligently, shall have full and complete control over the conduct of such claim or Proceeding on behalf of the indemnified party and shall, in his or her or its sole discretion, have the right to decide all matters of procedure, strategy, substance and settlement relating to such claim or Proceeding; provided, however, that any counsel chosen by such indemnifying party to conduct such defense shall be reasonably satisfactory to the indemnified party. The indemnified party may be effected by participate in such claim or Proceeding and retain separate co-counsel at its sole cost and expense (except that the indemnifying party without shall be responsible for the indemnified party's consent unless (i) there is no finding or admission reasonable fees and expenses of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other Claims that may be made against the indemnified party, and (ii) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (c) the indemnifying party will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of a Claim and the indemnifying party does not, within ten days after the indemnified party's notice is given, give notice to one separate co-counsel for the indemnified party of its election to assume the defense of such Claim, the indemnifying party will be bound by any determination with respect to said Claim or any compromise or settlement effected by extent the indemnified party unless it objects in good faith as to whether such claim is properly within advised by its counsel that the scope of such indemnification.
(c) Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that a Claim may adversely affect it or its Related Persons other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or settle such Claim, but the indemnifying party will not be bound by any determination of a Claim so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In the event that TWC Shareholders assume the defense of a Claim under this Section 10.4, Anicom hereby agrees and endeavors to cooperate, and to cause TWC to cooperate, in all reasonable respects with TWC Shareholders as they may reasonably request, which cooperation shall include, without limitation, making available business records, tax filings, documents or other information of TWC pertaining to, and employees (including employee time) of TWC having personal knowledge of, the circumstances relating to such Claim.counsel the
Appears in 1 contract
Sources: Asset Purchase Agreement (High Speed Net Solutions Inc)
PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS. (a) Promptly after receipt by an indemnified party under Section 10.2 or 10.3 of notice of a claim the commencement of any Proceeding against it (" Claim")it, such indemnified party shallwill, if a claim is to be made against an indemnifying party under such Sectionparty, give notice to the indemnifying party of the commencement of such Claimclaim, but the failure to notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party, except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the indemnified indemnifying party's failure to give such notice.
(b) If any Claim Proceeding referred to in Section 10.4(a9.7(a) is made brought against an indemnified party and it gives notice to the indemnifying party of the commencement of such ClaimProceeding, the indemnifying party will, unless the Claim claim involves Taxes, be entitled to participate in the defense of such Claim Proceeding and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Claim Proceeding and the indemnified party reasonably determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Claim Proceeding and provide indemnification with respect to such ClaimProceeding), to assume the defense of such Claim Proceeding with counsel reasonably satisfactory to the indemnified party and, after notice from the indemnifying party to the indemnified party of its election to assume the defense of such ClaimProceeding, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under such this Section 9 for any fees of other counsel or any other expenses with respect to the defense of such Claim Proceeding, in each case subsequently incurred by the indemnified party in connection with the defense of such ClaimProceeding, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a ClaimProceeding, (ai) it will be conclusively established for purposes of this Agreement that the claims made in that Claim Proceeding are within the scope of and subject to indemnification; (bii) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party's consent unless (iA) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other Claims claims that may be made against the indemnified party, and (iiB) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (ciii) the indemnifying indemnified party will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of a Claim the commencement of any Proceeding and the indemnifying party does not, within ten fifteen days after the indemnified party's notice is given, give notice to the indemnified party of its election to assume the defense of such ClaimProceeding, the indemnifying party will be bound by any determination with respect to said Claim made in such Proceeding or any compromise or settlement effected by the indemnified party unless it objects in good faith as to whether such claim is properly within which the scope of such indemnificationindemnifying party consents, which consent may not be unreasonably withheld.
(c) Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that a Claim Proceeding may adversely affect it or its Related Persons affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or settle such ClaimProceeding, but the indemnifying party will not be bound by any determination of a Claim Proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In the event that TWC Shareholders assume the defense of a Claim under this Section 10.4, Anicom hereby agrees and endeavors to cooperate, and to cause TWC to cooperate, in all reasonable respects with TWC Shareholders as they may reasonably request, which cooperation shall include, without limitation, making available business records, tax filings, documents or other information of TWC pertaining to, and employees (including employee time) of TWC having personal knowledge of, the circumstances relating to such Claim.
Appears in 1 contract
PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS. (a) Promptly after receipt by an indemnified party under Section 10.2 8.3 or 10.3 8.4 of notice of a claim the commencement of any Proceeding against it (" Claim")it, such indemnified party shall, if a claim in respect thereof is to be made against an indemnifying party under such Section, give notice to the indemnifying party of such Claimthe commencement thereof, but the failure so to notify the indemnifying party will shall not relieve the indemnifying party it of any liability that it may have to any indemnified party, party except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the indemnified party's failure to give thereby. In case any such notice.
(b) If any Claim referred to in Section 10.4(a) is made Proceeding shall be brought against an indemnified party and it gives shall give notice to the indemnifying party of such Claimthe commencement thereof, the indemnifying party willshall, unless the Claim claim involves Taxes, be entitled to participate in the defense of such Claim therein and, to the extent that it wishes shall wish (unless (i) the indemnifying party is also a party to such Claim Proceeding and the indemnified party determines in good faith that joint representation representations would be inappropriate, inappropriate or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Claim Proceeding and provide indemnification with respect to such Claimthereto), to assume the defense of such Claim thereof with counsel reasonably satisfactory to the such indemnified party and, after notice from the indemnifying party to the such indemnified party of its election so to assume the defense of such Claimthereof, the indemnifying party will not, as long as it diligently conducts such defense, shall not be liable to the such indemnified party under such Section for any fees of other counsel or any other expenses with respect to the defense of such Claim Proceeding, in each case subsequently incurred by the such indemnified party in connection with the defense of such Claimthereof, other than reasonable costs of investigation. If the an indemnifying party assumes the defense of such a ClaimProceeding, (a) it will be conclusively established for purposes of this Agreement that the claims made in that Claim are within the scope of and subject to indemnification; (b) no compromise or settlement of such claims thereof may be effected by the indemnifying party without the indemnified party's ’s consent unless (i) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other Claims claims that may be made against the indemnified party, party and (ii) the sole relief provided is monetary damages that are paid in full by the indemnifying party; party and (cb) the indemnifying indemnified party will shall have no liability with respect to any compromise or settlement of such claims thereof effected without its consent. If notice is given to an indemnifying party of a Claim the commencement of any Proceeding and the indemnifying party it does not, within ten thirty (30) days after the indemnified party's ’s notice is given, give notice to the indemnified party of its election to assume the defense of such Claimthereof, the indemnifying party will shall be bound by any determination with respect to said Claim made in such action or any compromise or settlement thereof effected by the indemnified party unless it objects in good faith as to whether such claim is properly within the scope of such indemnification.
(c) party. Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that a Claim Proceeding may adversely affect it or its Related Persons affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreementdamages, the such indemnified party may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, compromise or settle such ClaimProceeding, but the indemnifying party will shall not be bound by any determination of a Claim Proceeding so defended or any compromise or settlement thereof effected without its consent (which may shall not be unreasonably withheld). In the event that TWC Shareholders assume the defense of a Claim under this Section 10.4, Anicom hereby agrees and endeavors to cooperate, and to cause TWC to cooperate, in all reasonable respects with TWC Shareholders as they may reasonably request, which cooperation shall include, without limitation, making available business records, tax filings, documents or other information of TWC pertaining to, and employees (including employee time) of TWC having personal knowledge of, the circumstances relating to such Claim.
Appears in 1 contract
Sources: Stock Purchase Agreement (Encompass Group Affiliates, Inc)
PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS. (a) Promptly after receipt by an indemnified party Indemnified Person under Section 10.2 or 10.3 of notice of a claim the commencement of any Proceeding against it (" Claim")it, such indemnified party shallIndemnified Person will, if a claim is to be made against an indemnifying party under such Section, give notice to the indemnifying party of the commencement of such Claimclaim, but the failure to notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified partyIndemnified Person, except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the indemnified indemnifying party's failure to give such notice.
(b) If any Claim Proceeding referred to in Section 10.4(a10.5(a) is made brought against an indemnified party Indemnified Person and it gives notice to the indemnifying party of the commencement of such ClaimProceeding, the indemnifying party will, unless the Claim involves Taxes, be entitled to participate in the defense of such Claim and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Claim Proceeding and the indemnified party Indemnified Person determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party Indemnified Person of its financial capacity to defend such Claim Proceeding and provide indemnification with respect to such ClaimProceeding), to assume the defense of such Claim Proceeding with counsel satisfactory to the indemnified party Indemnified Person and, after notice from the indemnifying party to the indemnified party Indemnified Person of its election to assume the defense of such ClaimProceeding and an acknowledgment of its indemnification obligation with respect thereto, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party Indemnified Person under such this Section 10 for any fees of other counsel or any other expenses with respect to the defense of such Claim Proceeding, in each case subsequently incurred by the indemnified party Indemnified Person in connection with the defense of such ClaimProceeding, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a ClaimProceeding in accordance with the preceding sentence, (a) it will be conclusively established for purposes of this Agreement that the claims made in that Claim are within the scope of and subject to indemnification; (bi) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified partyIndemnified Person's consent unless (iA) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other Claims claims that may be made against the indemnified partyIndemnified Person, and (iiB) the sole relief provided is monetary damages that are paid in full by the indemnifying party; party and (cii) the indemnifying party Indemnified Person will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of a Claim the commencement of any Proceeding and the indemnifying party does not, within ten days after the indemnified partyIndemnified Person's notice is given, give notice to the indemnified party Indemnified Person of its election to assume the defense of such ClaimProceeding, the indemnifying party will be bound by any determination with respect to said Claim made in such Proceeding or any compromise or settlement reasonably effected by the indemnified party unless it objects in good faith as to whether such claim is properly within the scope of such indemnificationIndemnified Person.
(c) Notwithstanding the foregoing, if an indemnified party Indemnified Person determines in good faith that there is a reasonable probability that a Claim Proceeding may adversely affect it or its Related Persons Affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party Indemnified Person may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or settle such ClaimProceeding, but the indemnifying party will not be bound by any determination of a Claim Proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In the event that TWC Shareholders assume the defense of a Claim under this Section 10.4, Anicom hereby agrees and endeavors to cooperate, and to cause TWC to cooperate, in all reasonable respects with TWC Shareholders as they may reasonably request, which cooperation shall include, without limitation, making available business records, tax filings, documents or other information of TWC pertaining to, and employees (including employee time) of TWC having personal knowledge of, the circumstances relating to such Claim.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Suiza Foods Corp)
PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS. (a) Promptly after receipt by an indemnified party under Section 10.2 7.3.2 or 10.3 7.3.3 of notice of a claim against it (" a "Claim"), such the indemnified party shallwill, if a claim is to be made against an indemnifying party under such Section, give notice to the indemnifying party of such the Claim, but the failure to notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party, except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the indemnified party's failure to give such notice.
(b) If any Claim referred to in Section 10.4(a7.3.5(a) is made against an indemnified party and it gives notice to the indemnifying party of such the Claim, the indemnifying party will, unless the Claim involves Taxestax liabilities, be entitled to participate in the defense of such the Claim and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such the Claim and the indemnified party determines in good faith that joint representation would be inappropriateresult in a conflict of interest, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such the Claim and provide indemnification with respect to such the Claim), to assume the defense of such the Claim with counsel satisfactory to the indemnified party and, after notice from the indemnifying party to the indemnified party of its election to assume the defense of such the Claim, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under such Section for any fees of other counsel or any other expenses with respect to the defense of such the Claim in each case subsequently incurred by the indemnified party in connection with the defense of such the Claim, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a Claim, (a) it will be conclusively established for purposes of this Agreement that the claims made in that Claim are within the scope of and subject to indemnification; (b) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party's consent unless (i) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other Claims that may be made against the indemnified party, and (ii) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (cb) the indemnifying party will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of a Claim and the indemnifying party does not, within ten days after the indemnified party's notice is given, give notice to the indemnified party of its election to assume the defense of such the Claim, the indemnifying party will be bound by any determination with respect to said the Claim or any compromise or settlement effected by the indemnified party unless it objects in good faith as to whether such claim is properly within the scope of such indemnificationparty.
(c) Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that a Claim may adversely affect it or its Related Persons other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or settle such the Claim, but the indemnifying party will not be bound by any determination of a Claim so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In the event that TWC Shareholders assume the defense of a Claim under this Section 10.4, Anicom hereby agrees and endeavors to cooperate, and to cause TWC to cooperate, in all reasonable respects with TWC Shareholders as they may reasonably request, which cooperation shall include, without limitation, making available business records, tax filings, documents or other information of TWC pertaining to, and employees (including employee time) of TWC having personal knowledge of, the circumstances relating to such Claim.
Appears in 1 contract
PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS. (a) Promptly after receipt by an indemnified party Indemnified Person under Section 10.2 9.2 or 10.3 9.3 of notice of a claim the commencement of any Proceeding against it (" Claim")it, such indemnified party shallIndemnified Person will, if a claim is to be made against an indemnifying party under such Section, give notice to the indemnifying party of the commencement of such Claimclaim, but the failure to notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified partyIndemnified Person, except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the indemnified partyIndemnified Person's failure to give such notice.
(b) If any Claim Proceeding referred to in Section 10.4(a9.5(a) is made brought against an indemnified party Indemnified Person and it gives notice to the indemnifying party of the commencement of such ClaimProceeding, the indemnifying party will, unless the Claim involves Taxes, be entitled to participate in the defense of such Claim and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Claim Proceeding and the indemnified party Indemnified Person determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party Indemnified Person of its financial capacity to defend such Claim Proceeding and provide indemnification with respect to such ClaimProceeding), to assume the defense of such Claim Proceeding with counsel satisfactory to the indemnified party Indemnified Person and, after notice from the indemnifying party to the indemnified party Indemnified Person of its election to assume the defense of such ClaimProceeding and an acknowledgment of its indemnification obligation with respect thereto, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party Indemnified Person under such this Section 9 for any fees of other counsel or any other expenses with respect to the defense of such Claim Proceeding, in each case subsequently incurred by the indemnified party Indemnified Person in connection with the defense of such ClaimProceeding, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a ClaimProceeding in accordance with the preceding sentence, (a) it will be conclusively established for purposes of this Agreement that the claims made in that Claim are within the scope of and subject to indemnification; (bi) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified partyIndemnified Person's consent unless (iA) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other Claims claims that may be made against the indemnified partyIndemnified Person, and (iiB) the sole relief provided is monetary damages that are paid in full by the indemnifying party; party and (cii) the indemnifying party Indemnified Person will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of a Claim the commencement of any Proceeding and the indemnifying party does not, within ten days after the indemnified party's notice is given, give notice to the indemnified party of its election to assume the defense of such Claim, the indemnifying party will be bound by any determination with respect to said Claim or any compromise or settlement effected by the indemnified party unless it objects in good faith as to whether such claim is properly within the scope of such indemnification.
(c) Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that a Claim may adversely affect it or its Related Persons other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or settle such Claim, but the indemnifying party will not be bound by any determination of a Claim so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In the event that TWC Shareholders assume the defense of a Claim under this Section 10.4, Anicom hereby agrees and endeavors to cooperate, and to cause TWC to cooperate, in all reasonable respects with TWC Shareholders as they may reasonably request, which cooperation shall include, without limitation, making available business records, tax filings, documents or other information of TWC pertaining to, and employees (including employee time) of TWC having personal knowledge of, the circumstances relating to such Claim.Indemnified
Appears in 1 contract
PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS. (a) Promptly after receipt by an a Person indemnified party under Section 10.2 or 10.3 pursuant to this Article V of notice of a claim the commencement of any Proceeding against it (" Claim")it, such indemnified party shallPerson will, if a claim is to be made against an indemnifying party under such SectionPerson pursuant to this Article V, give notice to the indemnifying party Person of the commencement of such Claimclaim, but the failure to notify the indemnifying party Person will not relieve the indemnifying party Person of any liability that it may have to any indemnified partyPerson, except to the extent that the indemnifying party Person demonstrates that the defense of such action claim is prejudiced by the indemnified partyindemnifying Person's failure to give such notice.
(b) If any Claim Proceeding referred to in Section 10.4(a5.5(a) is made brought against an indemnified party Person and it gives notice to the indemnifying party Person of the commencement of such ClaimProceeding, the indemnifying party Person will, unless the Claim claim involves Taxes, be entitled to participate in the defense of such Claim Proceeding and, to the extent that it wishes desires (unless (i1) the indemnifying party Person is also a party to such Claim Proceeding and the indemnified party Person determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party Person fails to provide reasonable assurance to the indemnified party Person of its financial capacity to defend such Claim Proceeding and provide indemnification with respect to such ClaimProceeding), to assume the defense of such Claim Proceeding with counsel satisfactory to the indemnified party Person and, after notice from the indemnifying party Person to the 29 30 indemnified party Person of its election to assume the defense of such ClaimProceeding, the indemnifying party Person will not, as long as it diligently conducts such defense, be liable to the indemnified party under such Section Person pursuant to this Article V for any fees of other counsel or any other expenses with respect to the defense of such Claim Proceeding, in each case subsequently incurred by the indemnified party Person in connection with the defense of such ClaimProceeding, other than reasonable costs of investigation. If the an indemnifying party Person assumes the defense of a ClaimProceeding, (aI) it will be conclusively established for purposes of this Agreement that the claims made in that Claim Proceeding are within the scope of and subject to indemnification; (bii) no compromise or settlement of such claims may be effected by the indemnifying party Person without the indemnified partyPerson's consent consent, unless (iA) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other Claims claims that may be made against the indemnified partyPerson, and (iiB) the sole relief provided is monetary damages that are paid in full by the indemnifying partyPerson; and (ciii) the indemnifying party indemnified Person will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party Person of a Claim the commencement of any Proceeding and the indemnifying party Person does not, within ten 10 days after the indemnified partyPerson's notice is given, give notice to the indemnified party Person of its election to assume the defense of such ClaimProceeding, the indemnifying party Person will be bound obligated by any determination with respect to said Claim made in such Proceeding or any compromise or settlement effected by the indemnified party unless it objects in good faith as to whether such claim is properly within the scope of such indemnificationPerson.
(c) Notwithstanding the foregoing, if an indemnified party Person determines in good faith that there is a reasonable probability that a Claim Proceeding may adversely affect it or its Related Persons affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party Person may, by notice to the indemnifying partyPerson, assume the exclusive right to defend, compromise, or settle such ClaimProceeding, but the indemnifying party Person will not be bound obligated by any determination of a Claim Proceeding so defended or any compromise or settlement effected without its consent (which may shall not be unreasonably withheld). In .
(d) Shareholders hereby consent to the event non-exclusive jurisdiction of any court in which a Proceeding is brought against any Security Asset Indemnified Person for purposes of any claim that TWC Shareholders assume a Security Asset Indemnified Person may have pursuant to this Agreement with respect to such Proceeding or the defense of a Claim under this Section 10.4, Anicom hereby agrees and endeavors to cooperatematters alleged therein, and to cause TWC to cooperate, in all reasonable respects agree that process may be served on Shareholders with TWC Shareholders as they may reasonably request, which cooperation shall include, without limitation, making available business records, tax filings, documents or other information of TWC pertaining to, and employees (including employee time) of TWC having personal knowledge of, the circumstances relating respect to such Claima claim anywhere in the world.
Appears in 1 contract
Sources: Stock Acquisition and Reorganization Agreement (Security Asset Capital Corp/Nv)
PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS. (ai) Promptly Within thirty days after receipt by an indemnified party under Section 10.2 or 10.3 of notice of a claim the commencement of any proceeding against it (" Claim")to which the indemnification in this Section 7 relates, such indemnified party shall, if a claim is to be made against an indemnifying party under such SectionSection 7, give notice to the indemnifying party of the commencement of such Claimproceeding, but the failure to so notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party, except to the extent that the indemnifying party party, demonstrates that the defense of such action proceeding is materially prejudiced by the indemnified party's failure to give such notice.
(bii) If any Claim proceeding referred to in Section 10.4(aparagraph (i) above is made brought against an indemnified party and it gives notice to the indemnifying party of the commencement of such Claimproceeding, the indemnifying party will, unless the Claim involves Taxes, will be entitled to participate in the defense of such Claim proceeding and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Claim proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Claim proceeding and provide indemnification with respect to such Claimproceeding), to assume the defense of such Claim proceeding with counsel reasonably satisfactory to the indemnified party and, after notice from the indemnifying party to the indemnified party of its election to assume the defense of such Claimproceeding, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under such Section 7 for any fees of other counsel or any other expenses with respect to the defense of such Claim proceeding, in each case subsequently incurred by the indemnified party in connection with the defense of such Claimproceeding, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a Claimproceeding, (aA) it will be conclusively established for purposes of this Agreement that the claims made in that Claim proceeding are within the scope of and subject to indemnification; (bB) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party's consent unless (il) there is no finding or admission of any violation of Legal Requirements applicable law by the indemnified party (or any affiliate thereof) or any violation of the rights of any Person and no effect on any other Claims claims that may be made against the indemnified party, and (ii2) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (c) the indemnifying . The indemnified party will have no liability with respect to any compromise or settlement of the claims underlying such claims proceeding effected without its consent. If notice is given to an indemnifying party of a Claim the commencement of any proceeding and the indemnifying party does not, within ten days after the indemnified party's notice is given, give notice to the indemnified party of its election to assume the defense of such Claimproceeding, the indemnifying party will be bound by any determination with respect to said Claim made in such proceeding or any compromise or settlement effected by the indemnified party unless it objects in good faith as to whether such claim is properly within the scope of such indemnificationparty.
(ciii) Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that a Claim proceeding may adversely affect it or its Related Persons affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, with respect to those issues, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or settle such Claimproceeding, but the indemnifying party will not be bound by any determination of a Claim proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In the event that TWC Shareholders assume the defense of a Claim under this Section 10.4, Anicom hereby agrees and endeavors to cooperate, and to cause TWC to cooperate, in all reasonable respects with TWC Shareholders as they may reasonably request, which cooperation shall include, without limitation, making available business records, tax filings, documents or other information of TWC pertaining to, and employees (including employee time) of TWC having personal knowledge of, the circumstances relating to such Claimconsent.
Appears in 1 contract
Sources: Call and Put Option Agreement (Pennsylvania Real Estate Investment Trust)
PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS. (a) Promptly after receipt by an indemnified party under Section 10.2 11.2 or 10.3 11.3 of notice of a claim the commencement of any Proceeding against it (" Claim")it, such indemnified party shallwill, if a claim is to be made against an indemnifying party under such Section, give notice to the indemnifying party of the commencement of such Claimclaim, but the failure to notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party, except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the indemnified indemnifying party's failure to give such notice.
(b) If any Claim Proceeding referred to in Section 10.4(a11.9(a) is made brought against an indemnified party and it gives notice to the indemnifying party of the commencement of such ClaimProceeding, the indemnifying party will, unless the Claim involves Taxes, will be entitled to participate in the defense of such Claim Proceeding and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Claim Proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Claim Proceeding and provide indemnification with respect to such ClaimProceeding), to assume the defense of such Claim Proceeding with counsel satisfactory to the indemnified party and, after notice from the indemnifying party to the indemnified party of its election to assume the defense of such ClaimProceeding, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under such this Section 10 for any fees of other counsel or any other expenses with respect to the defense of such Claim Proceeding, in each case subsequently incurred by the indemnified party in connection with the defense of such ClaimProceeding, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a ClaimProceeding, (a) it will be conclusively established for purposes of this Agreement that the claims made in that Claim are within the scope of and subject to indemnification; (b) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party's consent unless (i) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other Claims that may be made against the indemnified party, and (ii) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (c) the indemnifying party will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of a Claim and the indemnifying party does not, within ten days after the indemnified party's notice is given, give notice to the indemnified party of its election to assume the defense of such Claim, the indemnifying party will consent which shall not be bound by any determination with respect to said Claim or any compromise or settlement effected by the indemnified party unless it objects in good faith as to whether such claim is properly within the scope of such indemnificationunreasonably withheld.
(c) Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that a Claim Proceeding may adversely affect it or its Related Persons affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, compromise or settle such ClaimProceeding, but the indemnifying party will not be bound by any determination of a Claim Proceeding so defended or any compromise or settlement effected effect without its consent (which may not be unreasonably withheld). In the event that TWC Shareholders assume the defense of a Claim under this Section 10.4, Anicom hereby agrees and endeavors to cooperate, and to cause TWC to cooperate, in all reasonable respects with TWC Shareholders as they may reasonably request, which cooperation shall include, without limitation, making available business records, tax filings, documents or other information of TWC pertaining to, and employees (including employee time) of TWC having personal knowledge of, the circumstances relating to such Claim.
Appears in 1 contract
Sources: Merger Agreement (Aon Corp)
PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS. (a) Promptly after receipt by an indemnified party under Section Sections 10.2 or 10.3 of notice of a claim the commencement of any Proceeding against it (" Claim")it, such indemnified party shallwill, if a claim is to be made against an indemnifying party under such Section, give notice to the indemnifying party of the commencement of such Claimclaim, but the failure to notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party, except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the indemnified indemnifying party's ’s failure to give such notice.
(b) If any Claim Proceeding referred to in Section 10.4(a10.6(a) is made brought against an indemnified party and it gives notice to the indemnifying party of the commencement of such ClaimProceeding, the indemnifying party will, unless the Claim involves Taxes, be entitled to participate in the defense of such Claim Proceeding and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Claim Proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Claim Proceeding and provide indemnification with respect to such ClaimProceeding), to assume the defense of such Claim Proceeding with counsel reasonably satisfactory to the indemnified party (L▇▇▇▇▇ & W▇▇▇▇▇▇, LLP being acceptable to Buyer for these purposes) and, after notice from the indemnifying party to the indemnified party of its election to assume the defense of such ClaimProceeding, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under such this Section 10 for any fees of other counsel or any other expenses with respect to the defense of such Claim Proceeding, in each case subsequently incurred by the indemnified party in connection with the defense of such ClaimProceeding, other than reasonable costs of investigationinvestigation conducted at the request of the indemnifying party. If the indemnifying party assumes the defense of a ClaimProceeding, (ai) it will be conclusively established for purposes of this Agreement that the claims made in that Claim Proceeding are within the scope of and subject to indemnification; (bii) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party's ’s consent (not to be unreasonably withheld, conditioned or delayed) unless (iA) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other Claims claims that may be made against the indemnified party, and (iiB) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (ciii) the indemnifying indemnified party will have no liability with respect to any compromise or settlement of such claims effected without its consentconsent (not to be unreasonably withheld, conditioned or delayed). If notice is given to an indemnifying party of a Claim the commencement of any Proceeding and the indemnifying party does not, within ten thirty (30) days after the indemnified party's ’s notice is given, give notice to the indemnified party of its election to assume the defense of such ClaimProceeding, the indemnifying party will be bound by any determination with respect to said Claim made in such Proceeding or any compromise or settlement effected by the indemnified party unless it objects in good faith as to whether such claim is properly within the scope of such indemnificationparty.
(c) Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that a Claim Proceeding may adversely affect it or its Related Persons affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or settle such ClaimProceeding, but the indemnifying party will not be bound by any determination of a Claim Proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld).
(d) Seller hereby consents to the non-exclusive jurisdiction of any court in which a Proceeding is brought against any Indemnified Person for purposes of any claim that an Indemnified Person may have under this Agreement with respect to such Proceeding or the matters alleged therein, and agrees that process may be served on Seller with respect to such a claim anywhere in the world.
(e) The Parties covenant and agree that the protocol set forth on Schedule 10.6(e) shall be followed without exception in connection with any matters involving Medicare or Medicaid, including indemnification claims arising under Section 2.15.
(f) The Indemnified Party shall cooperate with the Indemnifying Party and its counsel in such defense and make available to the Indemnifying Party all witnesses, records, materials, and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as may be reasonably requested by the Indemnifying Party, and in contesting any claim, demand or Proceeding which the Indemnifying Party defends, or if appropriate and related to the claim, demand or Proceeding in question, in making any counterclaim against the Person asserting the Third Party Claim, or any cross-complaint against any Person. In the event that TWC Shareholders the Indemnifying Party fails to assume the defense of a such Third Party Claim under this Section 10.4within thirty (30) days after receipt of notice thereof in accordance with the terms hereof, Anicom hereby agrees and endeavors (A) the Indemnified Party against which such Third Party Claim has been asserted shall have the right to cooperateundertake the defense, and (B) the Indemnifying Party agrees to cause TWC cooperate with the Indemnified Party in such defense and make available to cooperatethe Indemnified Party, in all reasonable respects with TWC Shareholders as they may reasonably requestwitnesses, which cooperation shall include, without limitation, making available business records, tax filings, documents materials and information in the Indemnifying Party’s possession or other information of TWC pertaining to, and employees (including employee time) of TWC having personal knowledge of, under the circumstances Indemnifying Party’s control relating to such Claimthereto as may be reasonably requested by the Indemnified Party.
Appears in 1 contract
PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS. (a) 10.6.1. Promptly after receipt by an indemnified party Indemnified Person under Section Sections 10.2 or 10.3 10.3, of notice of a claim the commencement of any Proceeding against it (" Claim")it, such indemnified party shallIndemnified Person will, if a claim is to be made by it against an indemnifying party under such Section, give notice to the indemnifying party of the commencement of such Claimclaim, but the and with such notice provide a copy of any demand letter, summons or applicable correspondence, and any information with respect to insurance which may cover such claim and information with respect to any third party who may be liable to in connection therewith. The failure to notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified partyIndemnified Person, except to the extent that the indemnifying party demonstrates that the defense of such action it is prejudiced by the indemnified indemnifying party's failure to give such notice.
(b) 10.6.2. If any Claim Proceeding referred to in Section 10.4(a) 10.6.1 is made brought against an indemnified party Indemnified Person and it or he gives notice to the indemnifying party of the commencement of such ClaimProceeding, the indemnifying party will, unless the Claim claim involves Taxestaxes, be entitled to participate in the defense of such Claim Proceeding and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Claim Proceeding and the indemnified party Indemnified Person determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party Indemnified Person of its financial capacity to defend such Claim Proceeding and provide indemnification with respect to such ClaimProceeding), to assume the defense of such Claim Proceeding with counsel reasonably satisfactory to the indemnified party Indemnified Person and, after notice from the indemnifying party to the indemnified party Indemnified Person of its election to assume the defense of such ClaimProceeding, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party Indemnified Person under such this Section 10 for any fees of other counsel or any other expenses with respect to the defense of such Claim Proceeding, in each case subsequently incurred by the indemnified party Indemnified Person in connection with the defense of such ClaimProceeding, other than reasonable out of pocket costs of investigation. If the indemnifying party assumes the defense of a ClaimProceeding, (ai) it will be conclusively established for purposes of this Agreement that the claims made in that Claim Proceeding are within the scope of and subject to indemnification; (bii) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified partyIndemnified Person's consent unless (iA) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other Claims claims that may be made against the indemnified partyIndemnified Person, and (iiB) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (ciii) the indemnifying party Indemnified Person will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of a Claim the commencement of any Proceeding and the indemnifying party does not, within ten days after the indemnified partyIndemnified Person's notice is given, give notice to the indemnified party Indemnified Person of its election to assume the defense of such ClaimProceeding, the indemnifying party will be bound by any determination with respect to said Claim made in such Proceeding or any compromise or settlement effected by the indemnified Indemnified Person except that the Indemnified Person shall give the indemnifying party unless it objects seven days prior notice of the terms of any proposed settlement and the Indemnified Person shall not be liable to the extent that any Proceeding is conducted in, or the compromise or settlement is entered into in good faith as to whether such claim is properly within the scope of such indemnificationbad faith.
(c) 10.6.3. Notwithstanding the foregoing, if an indemnified party Indemnified Person determines in good faith that there is a reasonable probability that a Claim may Proceeding is reasonably likely to materially adversely affect it or its Related Persons Affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party Indemnified Person may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or settle such ClaimProceeding, but the indemnifying party will not be bound by any determination of a Claim Proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In The Indemnified Person shall give the event indemnifying party seven days prior notice of the terms of any proposed settlement and the Indemnified Person shall not be liable to the extent that TWC any Proceeding is conducted in, or the compromise or settlement is entered into in bad faith.
10.6.4. Shareholders assume hereby consent to the defense non-exclusive jurisdiction of any court in which a Claim Proceeding is brought against any Indemnified Person for purposes of any claim that an Indemnified Person may have under this Section 10.4, Anicom hereby agrees and endeavors Agreement with respect to cooperatesuch Proceeding or the matters alleged therein, and to cause TWC to cooperate, in all reasonable respects agree that process may be served on Shareholders with TWC Shareholders as they may reasonably request, which cooperation shall include, without limitation, making available business records, tax filings, documents or other information of TWC pertaining to, and employees (including employee time) of TWC having personal knowledge of, the circumstances relating respect to such Claima claim anywhere in the world.
Appears in 1 contract
PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS. (a) Promptly after receipt by In the event of an indemnified party under Section 10.2 or 10.3 of occurrence which any Indemnified Person asserts a claim that is subject to indemnification hereunder, the Indemnified Person shall provide reasonably prompt written notice of such event to the Indemnifying Person specifying in reasonable detail the factual basis for such claim (to the extent then known to the Indemnified Person), the specific section of this Agreement upon which the claim is based, an estimate, if possible, of the amount of Damages suffered by the Indemnified Person, and whether the claim is based on a claim against it by a third party (" Claim"the “Indemnification Notice”), such indemnified party shall, if a claim is to be made against an indemnifying party under such Section, give notice and shall otherwise make available to the indemnifying party Indemnifying Person all relevant information which is material to the claim and which is in the possession of such Claim, but the Indemnified Person. An Indemnified Person’s failure to notify give timely notice or to furnish the indemnifying party will not relieve the indemnifying party Indemnifying Person with any relevant data and documents in connection with any claim of any liability that it may have third party (a “Third-Party Claim”) shall not constitute a defense (in part or in whole) to any indemnified claim for indemnification by such party, except and only to the extent that such failure shall result in any material prejudice to the indemnifying party demonstrates Indemnifying Person. If such event involves a Third-Party Claim (other than any audit, litigation or other proceeding with respect to Taxes or Tax Returns of the Acquired Companies), the Indemnifying Person may elect, at its sole expense (without prejudice to the right of the Indemnified Person to fully participate at its own expense through counsel of its own choosing) to assume control of the defense, settlement, adjustment or compromise of any Third-Party Claim if the Indemnifying Person gives written notice to the Indemnified Person of its intention to do so no later than thirty (30) days following its receipt of the Indemnification Notice; provided, however, that the defense Indemnifying Person shall not settle or compromise a Third-Party Claim without the prior written consent of all Indemnified Persons (which consent shall not be unreasonably withheld, conditioned or delayed), which consent shall not be required if the settlement or compromise provides for a release from liability for such action is prejudiced Indemnified Person or the settlement does not impose any obligations on the Indemnified Party other than financial obligations for which such Indemnified Person shall be indemnified in full by the indemnified party's failure Indemnifying Person in the terms and with the limitations set forth in this Agreement. If the Indemnifying Person fails to give respond to the Indemnification Notice within the aforementioned thirty (30) days, it shall be considered that it has rejected the relevant Third-Party Claim. If the Indemnifying Person does not so choose to assume control of the defense, settlement, adjustment or compromise of any such noticeThird-Party Claim for which any Indemnified Person would be entitled to indemnification hereunder, then the Indemnified Person shall have the right to conduct the defense, settlement, adjustment or compromise of any such Third-Party Claim, and the expenses of the Indemnified Person may be considered Damages for which the Indemnified Person shall be entitled to seek indemnification under this Article VII. No such claim shall be settled, adjusted or compromised, or the defense thereof terminated by the Indemnified Person, without the prior written consent of the Indemnifying Person (which consent shall not be unreasonably withheld).
(b) If any Claim referred The parties hereto agree to in Section 10.4(a) is made against an indemnified party and it gives notice to the indemnifying party of such Claim, the indemnifying party will, unless the Claim involves Taxes, be entitled to participate in the defense of such Claim and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Claim and the indemnified party determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Claim and provide indemnification cooperate fully with respect to such Claim), to assume the defense of such Claim with counsel satisfactory to the indemnified party and, after notice from the indemnifying party to the indemnified party of its election to assume the defense of such Claim, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under such Section for any fees of each other counsel or any other expenses with respect to the defense of such Claim in each case subsequently incurred by the indemnified party in connection with the defense of such Claimdefense, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a Claim, (a) it will be conclusively established for purposes of this Agreement that the claims made in that Claim are within the scope of and subject to indemnification; (b) no compromise negotiation or settlement of such claims may be effected by any Third-Party Claims. Notwithstanding anything in this Section 7.4 to the indemnifying party contrary, none of the Seller or any Indemnified Person shall, without the indemnified party's written consent unless (i) there is no finding of, in the case of Buyer, the Seller, and in the case of the Seller, Buyer, not to be unreasonably withheld or admission delayed, settle or compromise any Third-Party Claim or permit a default or consent to entry of any violation of Legal Requirements or any violation judgment unless the claimant and such Person provide to such other party an unqualified release from all liability in respect of the rights of any Person and no effect on any other Claims that may be made against the indemnified party, and (ii) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (c) the indemnifying party will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of a Claim and the indemnifying party does not, within ten days after the indemnified party's notice is given, give notice to the indemnified party of its election to assume the defense of such Claim, the indemnifying party will be bound by any determination with respect to said Claim or any compromise or settlement effected by the indemnified party unless it objects in good faith as to whether such claim is properly within the scope of such indemnification.
(c) Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that a Claim may adversely affect it or its Related Persons other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or settle such Claim, but the indemnifying party will not be bound by any determination of a Claim so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In the event that TWC Shareholders assume the defense of a Claim under this Section 10.4, Anicom hereby agrees and endeavors to cooperate, and to cause TWC to cooperate, in all reasonable respects with TWC Shareholders as they may reasonably request, which cooperation shall include, without limitation, making available business records, tax filings, documents or other information of TWC pertaining to, and employees (including employee time) of TWC having personal knowledge of, the circumstances relating to such Third-Party Claim.
Appears in 1 contract
PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS. (a) Promptly after receipt by an indemnified party under Section 10.2 or 10.3 of If a Person receives notice of a claim the commencement any Proceeding against it (" Claim")which might give any party indemnification rights under this Section 10, then promptly thereafter such indemnified party shallPerson will, if a claim is to thus be made against an indemnifying party under such Sectionparty, give notice to the indemnifying such party of the commencement of such ClaimProceeding, but the failure to notify the indemnifying such party will not relieve the indemnifying party this Person of any liability that it may have to any indemnified such party, except to the extent that the indemnifying this party demonstrates that the defense of such action is prejudiced by the indemnified indemnifying party's failure to give such notice.
(b) If any Claim Proceeding referred to in Section 10.4(a10.10(a) is made brought against an indemnified party and it gives notice to the indemnifying party of the commencement of such ClaimProceeding, the indemnifying party will, unless the Claim involves Taxes, will be entitled to participate in the defense of such Claim Proceeding and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Claim Proceeding and the indemnified party determines in good faith that joint representation would be inappropriateresult in a conflict of interests preventing such joint representation, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Claim Proceeding and provide indemnification with respect to such ClaimProceeding), to assume the defense of such Claim Proceeding with counsel reasonably satisfactory to the indemnified party and, after notice from the indemnifying party to the indemnified party of its election to assume the defense of such ClaimProceeding, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under such this Section 10 for any fees of other counsel or any other expenses with respect to the defense of such Claim Proceeding, in each case subsequently incurred by the indemnified party in connection with the defense of such ClaimProceeding, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a ClaimProceeding, (a) it will be conclusively established for purposes of this Agreement that the claims made in that Claim are within the scope of and subject to indemnification; (bi) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party's consent unless (iA) there is no finding or admission of any violation of Legal Requirements or any material violation of the rights of any Person and no material effect on any other Claims claims that may be made against the indemnified party, and (iiB) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (cii) the indemnifying indemnified party will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an the indemnifying party does not undertake to defend such matter to which the indemnified party is entitled to indemnification hereunder within 10 days after receiving notice of a Claim the Proceeding's commencement, the indemnified party may undertake such defense through counsel of its choice, at the cost and expense of the indemnifying party, and the indemnified party may settle such matter, and the indemnifying party does not, within ten days after the indemnified party's notice is given, give notice to shall reimburse the indemnified party of its election to assume for the defense of amount paid in such Claimsettlement and any other liabilities, the indemnifying party will be bound by any determination with respect to said Claim costs or any compromise or settlement effected expenses incurred by the indemnified party unless it objects in good faith as to whether such claim is properly within the scope of such indemnification.
(c) Notwithstanding the foregoingconnection therewith, if an indemnified party determines in good faith provided, however, that there is a reasonable probability that a Claim may adversely affect it or its Related Persons other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, no circumstances shall the indemnified party may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or settle such Claim, but the indemnifying party will not be bound by any determination of a Claim so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In the event that TWC Shareholders assume the defense of a Claim under this Section 10.4, Anicom hereby agrees and endeavors to cooperate, and to cause TWC to cooperate, in all reasonable respects with TWC Shareholders as they may reasonably request, which cooperation shall include, without limitation, making available business records, tax filings, documents or other information of TWC pertaining to, and employees (including employee time) of TWC having personal knowledge of, the circumstances relating to such Claim.third
Appears in 1 contract
Sources: Merger Agreement (Packaged Ice Inc)
PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS. (a) a. Promptly after receipt by an indemnified party under Section 10.2 or 10.3 6 of notice of a claim the commencement of any action, arbitration, audit, hearing, investigation, litigation, or suit (whether civil, criminal, administrative, investigative, or informal) commenced, brought, conducted, or heard by or before, or otherwise involving, any governmental body or arbitrator (“Proceeding”) against it (" Claim")it, such indemnified party shallwill, if a claim is to be made against an indemnifying party under such Section, give notice to the indemnifying party of the commencement of such Claimclaim, but the failure to notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party, except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the indemnified indemnifying party's failure to give such notice.
(b) b. If any Claim Proceeding referred to in Section 10.4(a6.3(a) is made brought against an indemnified party and it gives notice to the indemnifying party of the commencement of such ClaimProceeding, the indemnifying party will, unless the Claim involves Taxes, will be entitled to participate in the defense of such Claim Proceeding and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Claim Proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Claim Proceeding and provide indemnification with respect to such ClaimProceeding), to assume the defense of such Claim Proceeding with counsel satisfactory to the indemnified party and, after notice from the indemnifying party to the indemnified party of its election to assume the defense of such ClaimProceeding, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under such Section this Article 6 for any fees of other counsel or any other expenses with respect to the defense of such Claim Proceeding, in each case subsequently incurred by the indemnified party in connection with the defense of such ClaimProceeding, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a ClaimProceeding, (ai) it will be conclusively established for purposes of this Agreement that the claims made in that Claim Proceeding are within the scope of and subject to indemnification; (bii) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party's consent unless (iA) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other Claims claims that may be made against the indemnified party, and (iiB) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (ciii) the indemnifying indemnified party will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of a Claim the commencement of any Proceeding and the indemnifying party does not, within ten days after the indemnified party's notice is given, give notice to the indemnified party of its election to assume the defense of such ClaimProceeding, the indemnifying party will be bound by any determination with respect to said Claim made in such Proceeding or any compromise or settlement effected by the indemnified party unless it objects in good faith as to whether such claim is properly within the scope of such indemnificationparty.
(c) c. Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that a Claim Proceeding may adversely affect it or its Related Persons affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or settle such ClaimProceeding, but the indemnifying party will not be bound by any determination of a Claim Proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In .
d. The Parties each hereby consents to the event non-exclusive jurisdiction of any court in which a Proceeding is brought against any Indemnified Person for purposes of any claim that TWC Shareholders assume the defense of a Claim an Indemnified Person may have under this Section 10.4, Anicom hereby agrees and endeavors Agreement with respect to cooperatesuch Proceeding or the matters alleged therein, and to cause TWC to cooperate, in all reasonable respects agree that process may be served on a Party with TWC Shareholders as they may reasonably request, which cooperation shall include, without limitation, making available business records, tax filings, documents or other information of TWC pertaining to, and employees (including employee time) of TWC having personal knowledge of, the circumstances relating respect to such Claima claim anywhere in the world.
Appears in 1 contract
Sources: Share Exchange Agreement (Versant International, Inc.)
PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS. (a) Promptly after receipt by an indemnified party under Section 10.2 Sections 9.2, or 10.3 9.3 of notice of a claim the commencement of any Proceeding against it (" Claim")it, such indemnified party shallwill, if a claim is to be made against an indemnifying party under such Section, give notice to the indemnifying party of the commencement of such Claimclaim, but the failure to notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party, except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the indemnified indemnifying party's ’s failure to give such notice.
(b) If any Claim Proceeding referred to in Section 10.4(a9.7(a) is made brought against an indemnified party and it gives notice to the indemnifying party of the commencement of such ClaimProceeding, the indemnifying party will, unless the Claim involves Taxes, will be entitled to participate in the defense of such Claim Proceeding and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Claim Proceeding and the indemnified party determines in good faith based upon a written and reasonable opinion of legal counsel that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Claim Proceeding and provide indemnification with respect to such ClaimProceeding), to assume the defense of such Claim with counsel satisfactory to the indemnified party Proceeding and, after notice from the indemnifying party to the indemnified party of its election to assume the defense of such ClaimProceeding, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under such this Section 9 for any fees of other counsel or any other expenses with respect to the defense of such Claim Proceeding, in each case subsequently incurred by the indemnified party in connection with the defense of such ClaimProceeding, other than reasonable costs of investigation. Notwithstanding anything to the contrary herein, the indemnifying party may participate in its own defense with respect to any Proceeding even though the indemnified party is permitted to defend itself under this section. If the indemnifying party assumes the defense of a ClaimProceeding, (ai) it will be conclusively established for purposes of this Agreement that the claims made in that Claim Proceeding are within the scope of and subject to indemnification; (bii) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party's ’s consent unless (iA) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other Claims that may be made against which would adversely affect the indemnified partyoperation of the Business, and (iiB) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (ciii) the indemnifying indemnified party will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of a Claim the commencement of any Proceeding and the indemnifying party does not, within ten days Business Days after the indemnified party's ’s notice is given, give notice to the indemnified party of its election to assume the defense of such ClaimProceeding, the indemnifying party will be bound to the indemnified party by any determination with respect to said Claim made in such Proceeding or any compromise or settlement effected by the indemnified party. If any indemnified party unless it objects or indemnifying party disagrees with the manner in good faith as which the other is applying this Section 9.7(b), such party shall be entitled to, upon notice to whether the other, specifying in reasonable detail the basis for any such claim is properly within the scope disagreement, an expedited resolution of such indemnificationdispute in accordance with the procedures set forth in Section 10.6(b).
(c) Notwithstanding The indemnifying party hereby consents to the foregoing, if non-exclusive jurisdiction of any court in which a Proceeding is brought against any indemnified person for purposes of any claim that an indemnified party determines in good faith that there is a reasonable probability that a Claim person may adversely affect it or its Related Persons other than as a result of monetary damages for which it would be entitled to indemnification have under this AgreementAgreement with respect to such Proceeding or the matters alleged therein, the indemnified party may, by notice to and agrees that process may be served on the indemnifying party, assume the exclusive right to defend, compromise, or settle such Claim, but the indemnifying party will not be bound by any determination of a Claim so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In the event that TWC Shareholders assume the defense of a Claim under this Section 10.4, Anicom hereby agrees and endeavors to cooperate, and to cause TWC to cooperate, in all reasonable respects person with TWC Shareholders as they may reasonably request, which cooperation shall include, without limitation, making available business records, tax filings, documents or other information of TWC pertaining to, and employees (including employee time) of TWC having personal knowledge of, the circumstances relating respect to such Claima claim.
Appears in 1 contract
PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS. (a) Promptly after receipt by an indemnified party under Section 10.2 or 10.4, or (to the extent provided in the last sentence of Section 10.3) Section 10.3 of notice of a claim the commencement of any Proceeding against it (" Claim")it, such indemnified party shallwill, if a claim is to be made against an indemnifying party under such Section, give notice to the indemnifying party of the commencement of such Claimclaim, but the failure to notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party, except and only to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the indemnified indemnifying party's failure to give such notice.
(b) If any Claim Proceeding referred to in Section 10.4(a10.7(a) is made brought against an indemnified party and it gives notice to the indemnifying party of the commencement of such ClaimProceeding, the indemnifying party will, unless the Claim claim involves TaxesTaxes not related to the Acquired Companies, be entitled to participate in such Proceeding with respect to the defense of such Claim Acquired Companies and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Claim Proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Claim Proceeding and provide indemnification with respect to such ClaimProceeding), to assume the defense of such Claim Proceeding with counsel satisfactory to the indemnified party and, after notice from the indemnifying party to the indemnified party of its election to assume the defense of such Claim, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under such Section for any fees of other counsel or any other expenses with respect to the defense of such Claim in each case subsequently incurred by the indemnified party in connection with the defense of such Claim, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a Claim, (a) it will be conclusively established for purposes of this Agreement that the claims made in that Claim are within the scope of and subject to indemnification; (b) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party's consent unless (i) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other Claims that may be made against the indemnified party, and (ii) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (c) the indemnifying party will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of a Claim and the indemnifying party does not, within ten days after the indemnified party's notice is given, give notice to the indemnified party of its election to assume the defense of such Claim, the indemnifying party will be bound by any determination with respect to said Claim or any compromise or settlement effected by the indemnified party unless it objects in good faith as to whether such claim is properly within the scope of such indemnification.the
(c) Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that a Claim Proceeding may adversely affect it or its Related Persons affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or settle such ClaimProceeding, but the indemnifying party will not be bound by any determination of a Claim Proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In the event that TWC Shareholders assume the defense of a Claim under this Section 10.4, Anicom hereby agrees and endeavors to cooperate, and to cause TWC to cooperate, in all reasonable respects with TWC Shareholders as they may reasonably request, which cooperation shall include, without limitation, making available business records, tax filings, documents or other information of TWC pertaining to, and employees (including employee time) of TWC having personal knowledge of, the circumstances relating to such Claim.
Appears in 1 contract
PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS. (a) Promptly after receipt by an indemnified party under Section 10.2 7.2 or 10.3 7.4, of notice of a claim the commencement of any Proceeding against it (" Claim")it, such indemnified party shallwill, if a claim is to be made against an indemnifying party under such Section, give notice to the indemnifying party of the commencement of such Claimclaim, but the failure to notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party, except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the indemnified indemnifying party's ’s failure to give such notice.
(b) If any Claim Proceeding referred to in Section 10.4(a7.8(a) is made brought against an indemnified party and it gives notice to the indemnifying party of the commencement of such ClaimProceeding, the indemnifying party will, unless the Claim claim involves Taxes, be entitled to participate in the defense of such Claim Proceeding and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Claim Proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Claim Proceeding and provide indemnification with respect to such ClaimProceeding), to assume the defense of such Claim Proceeding with counsel satisfactory to the indemnified party and, after notice from the indemnifying party to the indemnified party of its election to assume the defense of such ClaimProceeding, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under such this Section 7 for any fees of other counsel or any other expenses with respect to the defense of such Claim Proceeding, in each case subsequently incurred by the indemnified party in connection with the defense of such ClaimProceeding, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a ClaimProceeding, (ai) it will be conclusively established for purposes of this Agreement that the claims made in that Claim Proceeding are within the scope of and subject to indemnification; (bii) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party's ’s consent unless (iA) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other Claims claims that may be made against the indemnified party, and (iiB) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (ciii) the indemnifying indemnified party will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of a Claim the commencement of any Proceeding and the indemnifying party does not, within ten days after the indemnified party's ’s notice is given, give notice to the indemnified party of its election to assume the defense of such ClaimProceeding, the indemnifying party will be bound by any determination with respect to said Claim made in such Proceeding or any compromise or settlement effected by the indemnified party unless it objects in good faith as to whether such claim is properly within the scope of such indemnificationparty.
(c) Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that a Claim Proceeding may adversely affect it or its Related Persons affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or settle such ClaimProceeding, but the indemnifying party will not be bound by any determination of a Claim Proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In .
(d) Seller hereby consents to the event non-exclusive jurisdiction of any court in which a Proceeding is brought against any Indemnified Person for purposes of any claim that TWC Shareholders assume the defense of a Claim an Indemnified Person may have under this Section 10.4, Anicom hereby agrees and endeavors Agreement with respect to cooperatesuch Proceeding or the matters alleged therein, and to cause TWC to cooperate, in all reasonable respects agree that process may be served on Seller with TWC Shareholders as they may reasonably request, which cooperation shall include, without limitation, making available business records, tax filings, documents or other information of TWC pertaining to, and employees (including employee time) of TWC having personal knowledge of, the circumstances relating respect to such Claima claim anywhere in the world.
Appears in 1 contract
PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS. (a) Promptly after receipt by an indemnified party under Section 10.2 11.2, or 10.3 11.3 of notice of a claim the commencement of any Proceeding against it (" Claim")it, such indemnified party shallwill, if a claim is to be made against an indemnifying party under such Section, give notice to the indemnifying party of the commencement of such Claimclaim, but the failure to notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party, except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the indemnified indemnifying party's ’s failure to give such notice.
(b) If any Claim Proceeding referred to in Section 10.4(a11.5(a) is made brought against an indemnified party and it gives notice to the indemnifying party of the commencement of such ClaimProceeding, the indemnifying party will, unless the Claim claim involves Taxes, be entitled to participate in the defense of such Claim Proceeding and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Claim Proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Claim Proceeding and provide indemnification with respect to such ClaimProceeding), to assume the defense of such Claim Proceeding with counsel satisfactory to the indemnified party and, after notice from the indemnifying party to the indemnified party of its election to assume the defense of such ClaimProceeding, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under such this Section 11 for any fees of other counsel or any other expenses with respect to the defense of such Claim Proceeding, in each case subsequently incurred by the indemnified party in connection with the defense of such ClaimProceeding, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a ClaimProceeding, (ai) it will be conclusively established for purposes of this Agreement that the claims made in that Claim Proceeding are within the scope of and subject to indemnification; (bii) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party's ’s consent unless (iA) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other Claims claims that may be made against the indemnified party, and (iiB) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (ciii) the indemnifying indemnified party will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of a Claim the commencement of any Proceeding and the indemnifying party does not, within ten days after the indemnified party's ’s notice is given, give notice to the indemnified party of its election to assume the defense of such ClaimProceeding, the indemnifying party will be bound by any determination with respect to said Claim made in such Proceeding or any compromise or settlement effected by the indemnified party unless it objects in good faith as to whether such claim is properly within the scope of such indemnificationparty.
(c) Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that a Claim Proceeding may adversely affect it or its Related Persons affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or settle such ClaimProceeding, but the indemnifying party will not be bound by any determination of a Claim Proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In .
(d) Seller hereby consents to the event non-exclusive jurisdiction of any court in which a Proceeding is brought against any Indemnified Person for purposes of any claim that TWC Shareholders assume the defense of a Claim an Indemnified Person may have under this Section 10.4, Anicom hereby agrees and endeavors Agreement with respect to cooperatesuch Proceeding or the matters alleged therein, and to cause TWC to cooperate, in all reasonable respects agree that process may be served on Seller with TWC Shareholders as they may reasonably request, which cooperation shall include, without limitation, making available business records, tax filings, documents or other information of TWC pertaining to, and employees (including employee time) of TWC having personal knowledge of, the circumstances relating respect to such Claima claim anywhere in the world.
Appears in 1 contract
Sources: Stock Purchase Agreement (BIMI International Medical Inc.)
PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS. (a) Promptly after receipt by an indemnified party under Section 10.2 5.2, 5.4 or 10.3 5.3 (but only to the extent provided in the last sentence of Section 5.3) of notice of a the commencement of any Proceeding (including any claim for workers compensation benefits) against it (" Claim")it, such indemnified party shallwill, if a claim is to be made with respect thereto against an indemnifying party under such Section, give notice to the indemnifying party of the commencement of such Claimclaim, but the failure to notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party, except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the indemnified indemnifying party's failure to give such notice.
(b) If any Claim Proceeding referred to in Section 10.4(a5.9(a) is made brought against an indemnified party and it gives notice to the indemnifying party of the commencement of such ClaimProceeding, the indemnifying party will, unless the Claim involves Taxes, will be entitled to participate in the defense of such Claim Proceeding and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Claim Proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Claim Proceeding and provide indemnification with respect to such ClaimProceeding), to assume the defense of such Claim Proceeding with counsel reasonably satisfactory to the indemnified party and, after notice from the indemnifying party to the indemnified party of its election to assume the defense of such ClaimProceeding, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under such Section this Article 5 for any fees of other counsel or any other expenses with respect to the defense of such Claim Proceeding, in each case subsequently and reasonably incurred by the indemnified party in connection with the defense of such Claim, other than reasonable costs of investigationProceeding. If the indemnifying party assumes the defense of a ClaimProceeding, (a) it will be conclusively established for purposes of this Agreement that the claims made in that Claim are within the scope of and subject to indemnification; (bi) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party's consent unless (iA) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other Claims claims that may be made against the indemnified party, and (iiB) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (cii) the indemnifying indemnified party will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of a Claim and the indemnifying party does not, not deliver to the indemnified party within ten 90 days after the indemnified party's notice is given, give a writing indicating that, based on the facts actually known to the indemnifying party at such time regarding such claim, the indemnifying party reasonably believes that (without taking into account the limitations contained in Sections 5.7, 5.8, 5.9 and 5.10) it is obligated to provide indemnification pursuant to this Article 5 on account of such claim (it being agreed that such writing shall not constitute any binding obligation or waiver of rights of the indemnifying party), or if, following the delivery of such writing or at any other time, the indemnifying party notifies the indemnified party that it no longer believes that it is obligated to provide indemnification for such claim pursuant to this Article 5 (which notice the indemnifying party shall provide to the indemnified party promptly following its becoming aware of its election facts or circumstances leading it so to assume believe), then, in either such case, the indemnified party shall be entitled to conduct the defense against such claim, at the expense of such Claimthe indemnifying party and shall so notify the indemnifying party, and the indemnifying party will be bound by any determination with respect to said Claim or of a Proceeding so defended but will not be bound by any compromise or settlement effected by the indemnified party unless it objects in good faith as to whether such claim is properly within the scope of such indemnificationwithout its consent (which may not be unreasonably withheld).
(c) Notwithstanding the foregoing, if a claim seeks injunctive or other equitable relief against an indemnified party determines in good faith that there is a reasonable probability that a Claim may adversely affect it or its Related Persons other than as a result of monetary damages for which it otherwise would be entitled reasonably likely to indemnification under this Agreementhave a material and adverse impact on the ability of the indemnified party to conduct its business in the ordinary course, the indemnified party may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or settle such ClaimProceeding, but the indemnifying party will not be bound by any determination of a Claim Proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In .
(d) Seller hereby consents to the event non-exclusive jurisdiction of any court in which a Proceeding is brought by a third party against any Indemnified Person for purposes of any claim that TWC Shareholders assume the defense of a Claim an Indemnified Person may have under this Section 10.4, Anicom hereby agrees and endeavors Agreement with respect to cooperatesuch Proceeding or the matters alleged therein, and to cause TWC to cooperate, in all reasonable respects agree that process may be served on Seller with TWC Shareholders as they may reasonably request, which cooperation shall include, without limitation, making available business records, tax filings, documents or other information of TWC pertaining to, and employees (including employee time) of TWC having personal knowledge of, the circumstances relating respect to such Claima claim anywhere in the world.
Appears in 1 contract
Sources: Unit Purchase Agreement (Source Interlink Companies Inc)
PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS. (a) Promptly after receipt by an indemnified party under Section 10.2 or 10.3 in this Article 11 of notice of a claim the commencement of any Proceeding against it (" Claim")it, such indemnified party shallwill, if a claim is to be made against an indemnifying party under such Sectionarticle, give notice to the indemnifying party of the commencement of such Claimclaim, but the failure to notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party, except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the indemnified party's failure to give such notice.
(b) If any Claim Proceeding referred to in Section 10.4(a11.5(a) above is made brought against an indemnified party and it gives notice to the indemnifying party of the commencement of such ClaimProceeding, the indemnifying party will, unless the Claim claim involves Taxes, be entitled to participate in the defense of such Claim Proceeding and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Claim Proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, inappropriate or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Claim Proceeding and provide indemnification with respect to such ClaimProceeding), to assume the defense of such Claim Proceeding with counsel satisfactory to the indemnified party and, after notice from the indemnifying party to the indemnified party of its election to assume the defense of such ClaimProceeding, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under such Section this section for any fees of other counsel or any other expenses with respect to the defense of such Claim Proceeding, in each case subsequently incurred by the indemnified party in connection with the defense of such ClaimProceeding, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a Claim, Proceeding: (ai) it will be conclusively established for purposes of this Agreement that the claims made in that Claim Proceeding are within the scope of and subject to indemnification; (bii) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party's consent unless (i) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other Claims claims that may be made against the indemnified party, party and (ii) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (ciii) the indemnifying indemnified party will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of a Claim the commencement of any Proceeding and the indemnifying party does not, within ten (10) days after the indemnified party's notice is given, give notice to the indemnified party of its election to assume the defense of such ClaimProceeding, the indemnifying party will be bound by any determination with respect to said Claim made in such Proceeding or any compromise or settlement effected by the indemnified party unless it objects in good faith as to whether such claim is properly within the scope of such indemnificationparty.
(c) Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that a Claim Proceeding may adversely affect it or its Related Persons other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, compromise or settle such ClaimProceeding, but the indemnifying party will not be bound by any determination of a Claim Proceeding so defended or any compromise or settlement effected without its written consent (which may not be unreasonably withheld). In the event that TWC Shareholders assume the defense of a Claim under this Section 10.4, Anicom hereby agrees and endeavors to cooperate, and to cause TWC to cooperate, in all reasonable respects with TWC Shareholders as they may reasonably request, which cooperation shall include, without limitation, making available business records, tax filings, documents or other information of TWC pertaining to, and employees (including employee time) of TWC having personal knowledge of, the circumstances relating to such Claim.
Appears in 1 contract
Sources: Asset Purchase Agreement (Entravision Communications Corp)
PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS. (a) Promptly after receipt by an indemnified party under Section 10.2 11.2 or 10.3 11.4, or (to the extent provided in the last sentence of Section 11.3) Section 11.3 of notice of a claim the commencement of any Proceeding against it (" Claim")it, such indemnified party shallwill, if a claim is to be made against an indemnifying party under such Section, give notice to the indemnifying party of the commencement of such Claimclaim, but the failure to notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party, except and only to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the indemnified indemnifying party's failure to give such notice.
(b) If any Claim Proceeding referred to in Section 10.4(a11.7(a) is made brought against an indemnified party and it gives notice to the indemnifying party of the commencement of such ClaimProceeding, the indemnifying party will, unless the Claim claim involves TaxesTaxes not related to the Acquired Companies, be entitled to participate in such Proceeding with respect to the defense of such Claim Acquired Companies and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Claim Proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Claim Proceeding and provide indemnification with respect to such ClaimProceeding), to assume the defense of such Claim Proceeding with counsel satisfactory to the indemnified party and, after notice from the indemnifying party to the indemnified party of its election to assume the defense of such ClaimProceeding, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under such Section this Article XI for any fees of other counsel or any other expenses with respect to the defense of such Claim in each case Proceeding, subsequently incurred by the indemnified party in connection with the defense of such ClaimProceeding, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a ClaimProceeding, (ai) it will be conclusively established for purposes of this Agreement that the claims made in that Claim Proceeding are within the scope of and subject to indemnification; (bii) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party's consent unless (i) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other Claims that may be made against the indemnified party, and (ii) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (c) the indemnifying party will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of a Claim and the indemnifying party does not, within ten days after the indemnified party's notice is given, give notice to the indemnified party of its election to assume the defense of such Claim, the indemnifying party will be bound by any determination with respect to said Claim or any compromise or settlement effected by the indemnified party unless it objects in good faith as to whether such claim is properly within the scope of such indemnification.indemnified
(c) Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that a Claim Proceeding may adversely affect it or its Related Persons affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or settle such ClaimProceeding, but the indemnifying party will not be bound by any determination of a Claim Proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In the event that TWC Shareholders assume the defense of a Claim under this Section 10.4, Anicom hereby agrees and endeavors to cooperate, and to cause TWC to cooperate, in all reasonable respects with TWC Shareholders as they may reasonably request, which cooperation shall include, without limitation, making available business records, tax filings, documents or other information of TWC pertaining to, and employees (including employee time) of TWC having personal knowledge of, the circumstances relating to such Claim.
Appears in 1 contract
PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS. (a) Promptly after receipt by an indemnified party under Section 10.2 9.2 or 10.3 Section 9.3 of notice of a claim the commencement of any Proceeding against it (" Claim")it, such indemnified party shallwill, if a claim is to be made against an indemnifying party under such Section, give notice to the indemnifying party of the commencement of such Claimclaim, but the failure to notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party, except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the indemnified indemnifying party's failure to give such notice.
(b) . If any Claim Proceeding referred to in Section 10.4(a9.8(a) is made brought against an indemnified party and it gives notice to the indemnifying party of the commencement of such ClaimProceeding, the indemnifying party will, unless the Claim claim involves Taxes, be entitled to participate in the defense of such Claim Proceeding and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Claim Proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Claim Proceeding and provide indemnification with respect to such ClaimProceeding), to assume the defense of such Claim Proceeding with counsel satisfactory to the indemnified party and, after notice from the indemnifying party to the indemnified party of its election to assume the defense of such ClaimProceeding, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under such this Section 9 for any fees of other counsel or any other expenses with respect to the defense of such Claim Proceeding, in each case subsequently incurred by the indemnified party in connection with the defense of such ClaimProceeding, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a ClaimProceeding, (ai) it will be conclusively established for purposes of this Agreement that the claims made in that Claim Proceeding are within the scope of and subject to indemnification; (bii) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party's consent unless (iA) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other Claims claims that may be made against the indemnified party, and (iiB) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (ciii) the indemnifying indemnified party will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of a Claim the commencement of any Proceeding and the indemnifying party does not, within ten days after the indemnified party's notice is given, give notice to the indemnified party of its election to assume the defense of such ClaimProceeding, the indemnifying party will be bound by any determination with respect to said Claim made in such Proceeding or any compromise or settlement effected by the indemnified party unless it objects in good faith as to whether such claim is properly within the scope of such indemnification.
(c) party. Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that a Claim Proceeding may adversely affect it or its Related Persons Affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or settle such ClaimProceeding, but the indemnifying party will not be bound by any determination of a Claim Proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In The Parties hereby consent to the event non-exclusive jurisdiction of any court in which a Proceeding is brought against any indemnified party for purposes of any claim that TWC Shareholders assume the defense of a Claim an indemnified party may have under this Section 10.4, Anicom hereby agrees and endeavors Agreement with respect to cooperatesuch Proceeding or the matters alleged therein, and to cause TWC to cooperate, in all reasonable respects agree that process may be served on such Persons with TWC Shareholders as they may reasonably request, which cooperation shall include, without limitation, making available business records, tax filings, documents or other information of TWC pertaining to, and employees (including employee time) of TWC having personal knowledge of, the circumstances relating respect to such Claima claim anywhere in the world.
Appears in 1 contract
PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS. (a) Promptly after receipt by an indemnified party under Section 10.2 13.2 or 10.3 Section 13.3 of notice of a claim the commencement of any Proceeding against it (" Claim")it, such indemnified party shallwill, if a claim is to be made against an indemnifying party under such Section, give notice to the indemnifying party of the commencement of such Claimclaim, but the failure to notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party, except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the indemnified indemnifying party's ’s failure to give such notice.
(b) If any Claim Proceeding referred to in Section 10.4(a) 13.5 is made brought against an indemnified party and it gives notice to the indemnifying party of the commencement of such ClaimProceeding, the indemnifying party will, unless the Claim claim involves Taxes, be entitled to participate in the defense of such Claim Proceeding and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Claim Proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Claim Proceeding and provide indemnification with respect to such ClaimProceeding), to assume the defense of such Claim Proceeding with counsel satisfactory to the indemnified party and, after notice from the indemnifying party to the indemnified party of its election to assume the defense of such ClaimProceeding, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under such Section this ARTICLE 13 for any fees of other counsel or any other expenses with respect to the defense of such Claim Proceeding, in each case subsequently incurred by the indemnified party in connection with the defense of such ClaimProceeding, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a ClaimProceeding, (ai) it will be conclusively established for purposes of this Agreement that the claims made in that Claim Proceeding are within the scope of and subject to indemnification; (bii) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party's ’s consent unless (iA) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other Claims claims that may be made against the indemnified party, and (iiB) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (ciii) the indemnifying indemnified party will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of a Claim the commencement of any Proceeding and the indemnifying party does not, within ten days after the indemnified party's ’s notice is given, give notice to the indemnified party of its election to assume the defense of such ClaimProceeding, the indemnifying party will be bound by any determination with respect to said Claim made in such Proceeding or any compromise or settlement effected by the indemnified party. Each indemnified party unless it objects hereby grants to the indemnifying party, to the extent permitted by law or by the terms of the indemnified party’s insurance policies then in good faith as force, a right of subrogation to whether proceed against the particular third party or parties in question, and seek to recover therefrom any amounts to which such claim is properly within the scope of such indemnificationindemnifying party may be lawfully entitled.
(c) Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that a Claim Proceeding may adversely affect it or its Related Persons affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or settle such ClaimProceeding, but the indemnifying party will not be bound by any determination of a Claim Proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In .
(d) Seller and Buyer hereby consent to the event non-exclusive jurisdiction of any court in which a Proceeding is brought against any Indemnified Person for purposes of any claim that TWC Shareholders assume the defense of a Claim an Indemnified Person may have under this Section 10.4, Anicom hereby agrees and endeavors Agreement with respect to cooperatesuch Proceeding or the matters alleged therein, and to cause TWC to cooperate, in all reasonable respects agree that process may be served on Seller with TWC Shareholders as they may reasonably request, which cooperation shall include, without limitation, making available business records, tax filings, documents or other information of TWC pertaining to, and employees (including employee time) of TWC having personal knowledge of, the circumstances relating respect to such Claima claim anywhere in the world.
Appears in 1 contract
PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS. (a) Promptly after receipt by an indemnified party under Section 10.2 9.2 or 10.3 9.3, of notice of a claim the commencement of any Proceeding against it (" Claim")it, such indemnified party shallwill, if a claim is to be made against an indemnifying party under such Section, give notice to the indemnifying party of the commencement of such Claimclaim, but the failure to notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party, except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the indemnified party's failure to give such notice.
(b) If any Claim Proceeding referred to in Section 10.4(a9.6(a) is made brought against an indemnified party and it gives notice to the indemnifying party of the commencement of such ClaimProceeding, the indemnifying party will, unless the Claim involves Taxes, will be entitled to participate in the defense of such Claim Proceeding and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Claim Proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Claim Proceeding and provide indemnification with respect to such ClaimProceeding), to assume the defense of such Claim Proceeding with counsel reasonably satisfactory to the indemnified party and, after notice from the indemnifying party to the indemnified party of its election to assume the defense of such ClaimProceeding, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under such this Section 9 for any fees of other counsel or any other expenses with respect to the defense of such Claim Proceeding, in each case subsequently incurred by the indemnified party in connection with the defense of such Claim, other than reasonable costs of investigationProceeding. If the indemnifying party assumes the defense of a ClaimProceeding, (a) it will be conclusively established for purposes of this Agreement that the claims made in that Claim are within the scope of and subject to indemnification; (bi) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party's consent unless (iA) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no adverse effect on any other Claims claims that may be made against the indemnified party, and (iiB) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (cii) the indemnifying indemnified party will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of a Claim the commencement of any Proceeding and the indemnifying party does not, within ten days after the indemnified party's notice is given, give notice to the indemnified party of its election to assume the defense of such ClaimProceeding, the indemnifying party will be bound by any determination with respect to said Claim made in such Proceeding or any compromise or settlement effected by the indemnified party unless it objects in good faith as to whether such claim is properly within the scope of such indemnification.
(c) Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that a Claim may adversely affect it or its Related Persons other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or settle such Claim, but the indemnifying party will not be bound by any determination of a Claim so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In the event that TWC Shareholders assume the defense of a Claim under this Section 10.4, Anicom hereby agrees and endeavors to cooperate, and to cause TWC to cooperate, in all reasonable respects with TWC Shareholders as they may reasonably request, which cooperation shall include, without limitation, making available business records, tax filings, documents or other information of TWC pertaining to, and employees (including employee time) of TWC having personal knowledge of, the circumstances relating to such Claim.-17-
Appears in 1 contract
PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS. (a) Promptly after receipt by an An indemnified party under Section 10.2 or 10.3 shall promptly give notice to each indemnifying party after obtaining knowledge of notice any matter as to which recovery may be sought against such indemnifying party because of the indemnity set forth above, and, if such indemnity shall arise from the claim of a third party, shall permit such indemnifying party to assume the defense of any such claim against it (" Claim")or any Proceeding resulting from such claim; provided, however, that failure to promptly give any such indemnified notice shall not affect the indemnification provided under this PARAGRAPH 7 except to the extent such indemnifying party shallshall have been actually and materially prejudiced as a result of such failure. Notwithstanding the foregoing, if a claim is to be made against an indemnifying party may not assume the defense of any such third-party claim or Proceeding if it does not demonstrate to the reasonable satisfaction of the indemnified party that it has adequate financial resources to defend such claim or Proceeding and pay any and all damages that may result therefrom, or if the claim or Proceeding (i) could result in imprisonment of the indemnified party, (ii) could result in a criminal penalty or fine against the indemnified party the consequences of which would be reasonably likely to have a Material Adverse Effect on the indemnified party unrelated to the size of such penalty or fine or (iii) could result in an equitable remedy which would materially impair the indemnified party's ability to exercise its rights under this Agreement, or impair HSNS's right or ability to operate the Acquired Business. If an indemnifying party assumes the defense of such Sectionthird party claim or Proceeding, give notice such indemnifying party shall agree prior thereto, in writing, that it is liable under this PARAGRAPH 7 to indemnify the indemnified party in accordance with the terms contained herein in respect of such claim or Proceeding, shall conduct such defense diligently, shall have full and complete control over the conduct of such claim or Proceeding on behalf of the indemnified party and shall, in his or her or its sole discretion, have the right to decide all matters of procedure, strategy, substance and settlement relating to such claim or Proceeding; provided, however, that any counsel chosen by such indemnifying party to conduct such defense shall be reasonably satisfactory to the indemnified party. The indemnified party may participate in such claim or Proceeding and retain separate co-counsel at its sole cost and expense (except that the indemnifying party shall be 32 34 responsible for the reasonable fees and expenses of such Claim, but one separate co-counsel for the failure indemnified party to notify the extent the indemnified party is advised by its counsel that the counsel the indemnifying party has selected has a conflict of interest) and the indemnifying party will not relieve without the indemnifying party written consent of any liability that it may have to any indemnified party, except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the indemnified party's failure to give such notice.
(b) If any Claim referred to in Section 10.4(a) is made against an indemnified party and it gives notice to the indemnifying party of such Claim, the indemnifying party will, unless the Claim involves Taxes, be entitled to participate in the defense of such Claim and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Claim and the indemnified party determines consent to the entry of any judgment or enter into any settlement with respect to the matter which does not include a provision whereby the plaintiff or the claimant in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to matter releases the indemnified party of its financial capacity to defend such Claim and provide indemnification from all liability with respect to such Claim), to assume the defense of such Claim with counsel satisfactory to the indemnified party and, after notice from the thereto. Failure by an indemnifying party to notify the indemnified party of its election to defend any such claim or Proceeding by a third party within thirty (30) days after notice thereof shall have been given to such indemnifying party by the indemnified party shall be deemed a waiver by such indemnifying party of its right to defend such claim or Proceeding.
(b) If no indemnifying party is permitted or elects to assume the defense of any such Claimclaim or Proceeding by a third party, the indemnified party shall diligently defend against such claim or Proceeding in such manner as it may deem appropriate and, in such event, the indemnifying party will not, as long as it diligently conducts such defense, be liable to or parties shall promptly reimburse the indemnified party under such Section for any fees of other counsel all reasonable out-of-pocket costs and expenses, legal or any other expenses with respect to the defense of such Claim in each case subsequently otherwise, incurred by the indemnified party and its affiliates in connection with the defense of against such Claimclaim or Proceeding, other than reasonable a such costs of investigationand expenses are incurred. If Any counsel chosen by such indemnified party to conduct such defense must be reasonably satisfactory to the indemnifying party assumes the defense of a Claim, (a) it will be conclusively established for purposes of this Agreement that the claims made in that Claim are within the scope of and subject to indemnification; (b) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party's consent unless (i) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other Claims that may be made against the indemnified partyparties, and only one counsel (iiin addition to local counsel, if required) the sole relief provided shall be retained to represent all indemnified parties in an action (except that if litigation is monetary damages that are paid pending in full by the indemnifying party; and (c) the indemnifying party will have no liability more than one jurisdiction with respect to any compromise or settlement of an action, one such claims effected without its consent. If notice counsel may be retained in each jurisdiction in which such litigation is given to an indemnifying party of a Claim and the indemnifying party does not, within ten days after the indemnified party's notice is given, give notice to the indemnified party of its election to assume the defense of such Claim, the indemnifying party will be bound by any determination with respect to said Claim or any compromise or settlement effected by the indemnified party unless it objects in good faith as to whether such claim is properly within the scope of such indemnificationpending).
(c) Notwithstanding the foregoing, if an The indemnified party determines in good faith that there is a reasonable probability that a Claim may adversely affect it or its Related Persons other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or settle such Claim, but the indemnifying party will not be bound by any determination of a Claim so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In the event that TWC Shareholders assume the defense of a Claim under this Section 10.4, Anicom hereby agrees and endeavors to cooperate, and to cause TWC to cooperate, cooperate in all reasonable respects with TWC Shareholders any indemnifying party in the conduct of any claim or Proceeding as they may reasonably request, to which such indemnifying party assumes the defense. For the cooperation shall include, without limitation, making available business records, tax filings, documents or other information of TWC pertaining to, and employees (including employee time) of TWC having personal knowledge ofthe indemnified party pursuant to this PARAGRAPH 7.4, the circumstances relating to indemnifying party or parties shall promptly reimburse the indemnified party for all reasonable out-of-pocket costs and expenses, legal or otherwise, incurred by the indemnified party or its affiliates in connection therewith, as such Claimcosts and expenses are incurred.
Appears in 1 contract
Sources: Asset Purchase Agreement (High Speed Net Solutions Inc)
PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS. (a) Promptly after receipt by an indemnified party under Section 10.2 9.2 or 10.3 9.3, of notice of a claim the commencement of any Proceeding against it (" Claim")it, such indemnified party shallwill, if a claim is to be made against an indemnifying party under such Section, give notice to the indemnifying party of the commencement of such Claimclaim, but the failure to notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party, except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the indemnified party's failure to give such notice.
(b) If any Claim Proceeding referred to in Section 10.4(a9.6(a) is made brought against an indemnified party and it gives notice to the indemnifying party of the commencement of such ClaimProceeding, the indemnifying party will, unless the Claim involves Taxes, will be entitled to participate in the defense of such Claim Proceeding and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Claim Proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Claim Proceeding and provide indemnification with respect to such ClaimProceeding), to assume the defense of such Claim Proceeding with counsel reasonably satisfactory to the indemnified party and, after notice from the indemnifying party to the indemnified party of its election to assume the defense of such ClaimProceeding, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under such this Section 9 for any fees of other counsel or any other expenses with respect to the defense of such Claim Proceeding, in each case subsequently incurred by the indemnified party in connection with the defense of such Claim, other than reasonable costs of investigationProceeding. If the indemnifying party assumes the defense of a ClaimProceeding, (a) it will be conclusively established for purposes of this Agreement that the claims made in that Claim are within the scope of and subject to indemnification; (bi) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party's consent unless (iA) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no adverse effect on any other Claims claims that may be made against the indemnified party, and (iiB) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (cii) the indemnifying indemnified party will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of a Claim the commencement of any Proceeding and the indemnifying party does not, within ten days after the indemnified party's notice is given, give notice to the indemnified party of its election to assume the defense of such ClaimProceeding, the indemnifying party will be bound by any determination with respect to said Claim made in such Proceeding or any compromise or settlement effected by the indemnified party unless it objects in good faith as to whether such claim is properly within the scope of such indemnificationparty.
(c) Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that a Claim may adversely affect it or its Related Persons other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or settle such Claim, but the indemnifying party will not be bound by any determination of a Claim so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In the event that TWC Shareholders assume the defense of a Claim under this Section 10.4, Anicom hereby agrees and endeavors to cooperate, and to cause TWC to cooperate, in all reasonable respects with TWC Shareholders as they may reasonably request, which cooperation shall include, without limitation, making available business records, tax filings, documents or other information of TWC pertaining to, and employees (including employee time) of TWC having personal knowledge of, the circumstances relating to such Claim.
Appears in 1 contract
Sources: Asset Purchase Agreement (Meadowbrook Rehabilitation Group Inc)
PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS. (a) Promptly Within 30 days after receipt discovery by an indemnified party Indemnified Person under Section 10.2 12.2, 12.3 or 10.3 12.4 of notice of any facts or conditions which could reasonably be expected to give rise to any Damages pursuant to a third party claim against it (" Claim")for which indemnification under this Article may be obtained, such indemnified party shallIndemnified Person will, if a claim is to be made against an indemnifying party under such Section, give notice to the indemnifying party specifying in reasonable detail and to the extent then known the nature and basis of such Claimclaim and the estimated amount thereof, but the failure to notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified partyIndemnified Person, except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced or damaged by the indemnified indemnifying party's ’s failure to give such timely notice. To the extent reasonably available, the Indemnified Person shall also send to the indemnifying party copies of all relevant documentation with respect to such third party claim, including, without limitation, any summons, complaint, or other pleading which may have been served, any written demand or any other document or instrument directly related thereto.
(b) If any Claim referred to in Section 10.4(a) is made against an indemnified party and it Indemnified Person gives notice to the indemnifying party under Section 12.11(a) of such Claimany facts or conditions which may give rise to Damages for which indemnification can be obtained, the indemnifying party will, unless the Claim involves Taxes, will be entitled to participate in the defense of control such Claim Proceeding and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Claim Proceeding and the indemnified party Indemnified Person determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Claim and provide indemnification with respect to such Claim), to assume the defense of such Claim Proceeding with counsel reasonably satisfactory to the indemnified party Indemnified Person and, after notice from the indemnifying party to the indemnified party Indemnified Person of its election to assume the defense of such ClaimProceeding, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party Indemnified Person under such Section this Article for any fees of other counsel or any other expenses with respect to the defense of such Claim Proceeding, in each case subsequently incurred by the indemnified party Indemnified Person in connection with the defense of such ClaimProceeding; provided that, as a condition precedent to the indemnifying party’s right to assume control of such defense, it must first: (i) enter into an agreement with the Indemnified Person (in form and substance reasonably satisfactory to the Indemnified Person) pursuant to which the indemnifying party agrees to be fully responsible (subject to the Sellers’ Indemnity Threshold, but otherwise with no reservation of rights) for all Damages relating to such claims and that it will provide full indemnification (whether or not otherwise required hereunder) to the Indemnified Person for all Damages relating to such claim, and (ii) unconditionally guarantee the payment and performance of any liability or obligation which may arise with respect to such claim or the facts giving rise to such claim for indemnification (without regard to the Indemnity Cap), and (iii) furnish the Indemnified Person with reasonable evidence that the indemnifying party is and will be able to satisfy any such liability. Notwithstanding the foregoing, the indemnifying party shall not have the right to assume control (or the Indemnified Person shall have the right to take back control, as the case may be) of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Person, if the third party claim (i) seeks injunctive or other than reasonable costs of investigation. non-monetary relief, (ii) involves criminal or quasi-criminal allegations, (iii) involves a claim to which the Indemnified Person reasonably believes an adverse determination would be materially detrimental or injurious to the Indemnified Person’s reputation or future business prospects, or (iv) involves a claim which, upon petition by the Indemnified Person, the appropriate court or arbitrational body rules that the indemnifying party failed or is failing to diligently prosecute or defend.
(c) If the indemnifying party assumes the defense of a ClaimProceeding, (ai) it will be conclusively established for purposes of this Agreement that the claims made in that Claim Proceeding are within the scope of and subject to indemnification; (bii) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party's Indemnified Person’s consent unless (iA) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other Claims claims that may be made against the indemnified partyIndemnified Person, and (iiB) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (ciii) the indemnifying party Indemnified Person will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of a Claim the commencement of any Proceeding and the indemnifying party does not, within ten (10) days after the indemnified party's Indemnified Person’s notice is given, give notice to the indemnified party Indemnified Person of its election to assume the defense of such ClaimProceeding, the indemnifying party will be bound by any determination with respect to said Claim made in such Proceeding or any compromise or settlement effected by the indemnified party unless it objects in good faith as to whether such claim is properly within the scope of such indemnificationIndemnified Person.
(c) Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that a Claim may adversely affect it or its Related Persons other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or settle such Claim, but the indemnifying party will not be bound by any determination of a Claim so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In the event that TWC Shareholders assume the defense of a Claim under this Section 10.4, Anicom hereby agrees and endeavors to cooperate, and to cause TWC to cooperate, in all reasonable respects with TWC Shareholders as they may reasonably request, which cooperation shall include, without limitation, making available business records, tax filings, documents or other information of TWC pertaining to, and employees (including employee time) of TWC having personal knowledge of, the circumstances relating to such Claim.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Healthextras Inc)
PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS. (a) Promptly after receipt by an indemnified party under Section 10.2 or 10.3 of notice of a claim the commencement of any Proceeding against it (" Claim")it, such indemnified party shallwill, if a claim is to be made against an indemnifying party under such Section, give notice to the indemnifying party of the commencement of such Claimclaim, but the failure to notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party, except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the indemnified indemnifying party's failure to give such notice.
(b) . If any Claim Proceeding referred to in Section 10.4(a10.7(a) is made brought against an indemnified party and it gives notice to the indemnifying party of the commencement of such ClaimProceeding, the indemnifying party will, unless the Claim claim involves Taxes, be entitled to participate in the defense of such Claim Proceeding and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Claim Proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Claim Proceeding and provide indemnification with respect to such ClaimProceeding), to assume the defense of such Claim Proceeding with counsel satisfactory to the indemnified party and, after notice from the indemnifying party to the indemnified party of its election to assume the defense of such ClaimProceeding, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under such this Section 10 for any fees of other counsel or any other expenses with respect to the defense of such Claim Proceeding, in each case subsequently incurred by the indemnified party in connection with the defense of such ClaimProceeding, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a ClaimProceeding, (ai) it will be conclusively established for purposes of this Agreement that the claims made in that Claim Proceeding are within the scope of and subject to indemnification; (bii) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party's consent unless (iA) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other Claims claims that may be made against the indemnified party, and (iiB) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (ciii) the indemnifying indemnified party will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of a Claim the commencement of any Proceeding and the indemnifying party does not, within ten days after the indemnified party's notice is given, give notice to the indemnified party of its election to assume the defense of such ClaimProceeding, the indemnifying party will be bound by any determination with respect to said Claim made in such Proceeding or any compromise or settlement effected by the indemnified party unless it objects in good faith as to whether such claim is properly within the scope of such indemnification.
(c) party. Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that a Claim Proceeding may adversely affect it or its Related Persons Affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or settle such ClaimProceeding, but the indemnifying party will not be bound by any determination of a Claim Proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In Each Seller hereby consents to the event non-exclusive jurisdiction of any court in which a Proceeding is brought against any Indemnified Person for purposes of any claim that TWC Shareholders assume the defense of a Claim an Indemnified Person may have under this Section 10.4, Anicom hereby agrees and endeavors Agreement with respect to cooperatesuch Proceeding or the matters alleged therein, and agree that process may be served on such Seller with respect to cause TWC such a claim anywhere in the world. Buyers hereby consent to cooperatethe non-exclusive jurisdiction of any court in which a Proceeding is brought against Sellers or any of its Representatives, in all reasonable respects with TWC Shareholders as they may reasonably request, which cooperation shall include, without limitation, making available business records, tax filings, documents or other information of TWC pertaining tocontrolling Persons, and employees (including employee time) Affiliates for purposes of TWC having personal knowledge of, the circumstances relating any claim that Sellers may have under this Agreement with respect to such ClaimProceeding or the matters alleged therein, and agree that process may be served on Buyers with respect to such a claim anywhere in the world.
Appears in 1 contract
Sources: Stock Purchase Agreement (Firearms Training Systems Inc)
PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS. (a) Promptly after receipt by an indemnified party under this Section 10.2 or 10.3 6.14 of notice of a claim the commencement of any Proceeding against it (" Claim")it, such indemnified party shallwill, if a claim is to be made against an indemnifying party under such Section, give notice to the indemnifying party of the commencement of such Claimclaim, but the failure to notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party, except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the indemnified indemnifying party's ’s failure to give such notice.
(b) If any Claim Proceeding referred to in Section 10.4(athe preceding paragraph (a) is made brought against an indemnified party and it gives notice to the indemnifying party of the commencement of such ClaimProceeding, the indemnifying party will, unless the Claim involves Taxes, will be entitled to participate in the defense of such Claim Proceeding and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Claim Proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Claim Proceeding and provide indemnification with respect to such ClaimProceeding), to assume the defense of such Claim Proceeding with counsel satisfactory to the indemnified party and, after notice from the indemnifying party to the indemnified party of its election to assume the defense of such ClaimProceeding, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under such this Section 6.14 for any fees of other counsel or any other expenses with respect to the defense of such Claim Proceeding, in each case subsequently incurred by the indemnified party in connection with the defense of such ClaimProceeding, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a ClaimProceeding, (ai) it will be conclusively established for purposes of this Agreement that the claims made in that Claim Proceeding are within the scope of and subject to indemnification; (bii) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party's ’s consent unless (iA) there is no finding or admission of any violation of Legal Requirements legal requirements or any violation of the rights of any Person person and no effect on any other Claims claims that may be made against the indemnified party, and (iiB) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (ciii) the indemnifying indemnified party will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of a Claim the commencement of any Proceeding and the indemnifying party does not, within ten days after the indemnified party's ’s notice is given, give notice to the indemnified party of its election to assume the defense of such ClaimProceeding, the indemnifying party will be bound by any determination with respect to said Claim made in such Proceeding or any compromise or settlement effected by the indemnified party unless it objects in good faith as to whether such claim is properly within the scope of such indemnificationparty.
(c) Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that a Claim Proceeding may adversely affect it or its Related Persons affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or settle such ClaimProceeding, but the indemnifying party will not be bound by any determination of a Claim Proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In the event that TWC Shareholders assume the defense of a Claim under this Section 10.4, Anicom hereby agrees and endeavors to cooperate, and to cause TWC to cooperate, in all reasonable respects with TWC Shareholders as they may reasonably request, which cooperation shall include, without limitation, making available business records, tax filings, documents or other information of TWC pertaining to, and employees (including employee time) of TWC having personal knowledge of, the circumstances relating to such Claim.
Appears in 1 contract
Sources: Merger Agreement (Drugmax Inc)
PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS. (a) Promptly after receipt by an indemnified party under Section 10.2 or 10.3 1 of this Indemnification Agreement of notice of any claim or the commencement of any proceeding against such indemnified party (in either case a claim against it (" Claim"Proceeding"), such indemnified party shallwill, if a claim is to be made against an indemnifying party under such Section, give notice to the indemnifying party of the commencement of such Claimclaim, but the failure to promptly notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party, except and solely to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the indemnified party's failure to give such prompt notice. The indemnified party will cooperate with the indemnifying party (and its counsel and other agents and representatives), upon request and, to the extent reasonable, on an ongoing basis beginning from the date the indemnified party first receives notice (whether formal or otherwise) of an actual or potential third party claim. The indemnified party's duty of reasonable cooperation includes assisting in its own defense and the indemnifying party's defense (if applicable); providing pertinent information to the indemnifying party as reasonably requested; and providing the indemnifying party with access, upon reasonable request, to pertinent witnesses, documents, real property, tangible things, and evidence; provided that such access is used in a way to minimize disruption to the indemnified party and its business.
(b) If any Claim Proceeding referred to in Section 10.4(a2.1(a) is made brought against an indemnified party and it such party gives notice to the indemnifying party of the commencement of such ClaimProceeding, the indemnifying party will, unless the Claim involves Taxes, will be entitled to participate in the defense of such Claim Proceeding and, to the extent that it the indemnifying party wishes (unless (i) the indemnifying party is also a party to such Claim Proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Claim and provide indemnification with respect to such Claim), to assume the defense of such Claim Proceeding with counsel satisfactory to the indemnified party and, after notice from the indemnifying party to the indemnified party of its the indemnifying party's election to assume the defense of such ClaimProceeding, the indemnifying party will not, as long as it such defense is diligently conducts such defenseconducted, be liable to the indemnified party under such Section this Indemnification Agreement for any fees of other counsel or any other expenses with respect to the defense of such Claim Proceeding, in each case subsequently incurred by the indemnified party in connection with the defense of such ClaimProceeding, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a ClaimProceeding, (ai) it will be conclusively established for purposes of this Indemnification Agreement that the claims made in that Claim Proceeding are within the scope of and subject to indemnificationindemnification (provided, however, that the indemnifying party may assume the defense with a reservation of its rights under this Indemnification Agreement for a period not to exceed sixty (60) days); (bii) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party's consent unless (iA) there is no finding or admission of any violation of Legal Requirements law or any violation of the rights of any Person individual or entity and no effect on any other Claims claims that may be made against the indemnified party, and (iiB) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (ciii) the indemnifying indemnified party will have no liability with respect to any compromise or settlement of such claims effected without its consent; and (iv) if the indemnified party refuses to consent to a bonafide offer to compromise or settle such claims which meets the conditions of clauses (A) and (B) of subsection (ii) above and the indemnifying party chooses not to agree to such bonafide offer without the indemnified party's consent, then the indemnifying party's liability with respect to such a Proceeding will be limited to the amount of the bonafide offer to compromise or settle. If notice is given to an the indemnifying party of a Claim the commencement of any Proceeding and the indemnifying party does not, within ten fifteen (15) days after the indemnified party's notice is given, give notice to the indemnified party of its election to assume the defense of such ClaimProceeding, the indemnifying party will be bound by any determination with respect to said Claim made in such Proceeding or any good faith compromise or settlement effected by the indemnified party unless it objects in good faith as party. A failure to whether such claim is properly provide notice within fifteen (15) days shall not, however, prejudice the scope of such indemnificationindemnifying party's right to assume the defense at a later time.
(c) Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability possibility that a Claim Proceeding may adversely affect it such indemnified party or its Related Persons the indemnified party's Affiliates other than as a result of monetary damages for which it the indemnified party would be entitled to indemnification under this Indemnification Agreement, the indemnified party may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or settle such ClaimProceeding, but the indemnifying party will not be bound by any determination of a Claim Proceeding so defended or any compromise or settlement effected without its the indemnifying party's consent (which may not be unreasonably withheld). In .
(d) Each of the event parties hereto hereby consents to the non-exclusive jurisdiction of any court in which a Proceeding is brought against any indemnified party for purposes of any claim that TWC Shareholders assume the defense of a Claim an indemnified party may have under this Section 10.4, Anicom hereby agrees and endeavors Indemnification Agreement with respect to cooperatesuch Proceeding or the matters alleged therein, and to cause TWC to cooperate, in all reasonable respects agrees that process may be served on it with TWC Shareholders as they may reasonably request, which cooperation shall include, without limitation, making available business records, tax filings, documents or other information of TWC pertaining to, and employees (including employee time) of TWC having personal knowledge of, the circumstances relating respect to such Claima claim in the manner set forth in Section 4.4 of this Indemnification Agreement.
Appears in 1 contract