Procedure for Indemnification. (a) If an Indemnitee shall receive notice or otherwise learn of the assertion by a person (including any governmental entity) who is not a party to this Agreement or to any of the Transaction Documents of any claim or of the commencement by any such Person of any action (a “Third-Party Claim”) with respect to which an Indemnifying Party may be obligated to provide indemnification pursuant to this Agreement, each such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after becoming aware of such Third-Party Claim; provided, however, that the failure of any Indemnitee to give notice as required by this Section 5.5 shall not relieve each Indemnifying Party of its obligations under this Article V, except to the extent that each such Indemnifying Party is prejudiced by such failure to give notice. Such notice shall describe the Third-Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee. (b) An Indemnifying Party may elect to defend or to seek to settle or compromise, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel reasonably acceptable to each Indemnitee, any Third-Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect of such Third-Party Claim. Within 30 days of the receipt of notice from an Indemnitee in accordance with Section 5.5(a) (or sooner, if the nature of such Third-Party Claim so requires), the Indemnifying Party shall notify each Indemnitee of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim), and each Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each Indemnitee of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees and the Indemnifying Party such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii). (c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party. (d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim. (e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties. (f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party. (g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 6 contracts
Sources: Separation and Distribution Agreement (Teton Advisors, Inc.), Separation and Distribution Agreement (Teton Advisors, Inc.), Separation and Distribution Agreement (Teton Advisors, Inc.)
Procedure for Indemnification. (a) If Except as may be set forth in a Related Agreement, if an Indemnitee shall receive notice or otherwise learn of the assertion by a person Person (including including, without limitation, any governmental entity) who is not a party to this Agreement or to any of the Transaction Documents Related Agreements of any claim or of the commencement by any such Person of any action Action (a “"Third-Party Claim”") with respect to which an Indemnifying Party may be obligated to provide indemnification pursuant to this Agreement, each such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after becoming aware of such Third-Party Claim; provided, however, provided that the failure of any Indemnitee to give notice as required by this Section 5.5 5.04 shall not relieve each the Indemnifying Party of its obligations under this Article V, except to the extent that each such Indemnifying Party is prejudiced by such failure to give notice. Such notice shall describe the Third-Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
(b) An Indemnifying Party may elect to defend or to seek to settle or compromise, at such Indemnifying Party’s 's own expense and by such Indemnifying Party’s 's own counsel reasonably acceptable to each Indemniteecounsel, any Third-Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each the Indemnitee is entitled to indemnification hereunder in respect of such Third-Party Claim. Within 30 days of the receipt of notice from an Indemnitee in accordance with Section 5.5(a5.04(a) (or sooner, if the nature of such Third-Party Claim so requires), the Indemnifying Party shall notify each the Indemnitee of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each the Indemnitee of its election within 30 days after receipt of such notice from each the Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim), and each such Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each an Indemnitee of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, provided that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ ' reasonable judgment there exists a conflict of interest between such Indemnitees and the such Indemnifying Party exists in respect of such claim, such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any an Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 5.01 or 5.35.02, as the case may be), each ) such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim Claim. Notwithstanding the foregoing, an Indemnitee may not settle or compromise any claim without prior written notice to each such the Indemnifying Party, which shall have the option within fifteen ten days following the receipt of such notice (i) to reject disapprove the settlement and assume all past and future responsibility for the claim, including reimbursing each the Indemnitee for prior expenditures in connection with the claim, or (ii) to reject disapprove the settlement and continue to refrain from participation in the defense of the claim, in which event each such the Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each the Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such the Indemnifying Party’s 's right to contest each the Indemnitee’s 's right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such the Indemnifying Party makes no response to such written notice from an the Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each the Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 5.04 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each the Indemnitee of a written release from all liability in respect of such Third-Party Claim, Claim (and (ii) provided further that such settlement does may not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents theretowithout the written consent of Indemnitee). In the event any the Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim Claim, free of any participation by such Indemnifying Party, at each such Indemnitee’s 's sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such the offer of settlement to settle or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), ) plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s 's continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an the Indemnitee to each the applicable Indemnifying Party. Each such Such Indemnifying Party shall have a period of 30 15 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claimrespond thereto. If each such Indemnifying Party does not so notify each respond within such Indemnitee during such 3015-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 3015-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party party under applicable law or under this Agreement or any other agreement or arrangement between the PartiesAgreement.
(f) In addition to any adjustments required pursuant to Section 5.45.03, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each the Indemnitee to each the Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
(h) Notwithstanding anything else in this Section 5.04 to the contrary, with respect to any Action pending at the time of the Distribution (a "Pending Action") with respect to which an Indemnifying Party may be obligated to provide indemnification pursuant to this Agreement, LTC or Healthcare shall, at the request of any other party, cause the employee(s) who were handling the defense, compromise or settlement of such Pending Action prior to the Distribution to continue to handle such defense, compromise or settlement following the Distribution (subject to the last two sentences of subsection (b) above). If such employees are employed by the Indemnitee, the Indemnitee shall keep the Indemnifying Party reasonably informed of the progress of, and the Indemnifying Party shall cooperate in, such defense, compromise or settlement.
Appears in 6 contracts
Sources: Distribution Agreement (LTC Healthcare Inc), Distribution Agreement (LTC Properties Inc), Distribution Agreement (LTC Healthcare Inc)
Procedure for Indemnification. (a) If an Indemnitee The following provisions shall receive notice or otherwise learn of the assertion by a person (including any governmental entity) who is not a party to this Agreement or apply to any of the Transaction Documents of any claim or of the commencement by any such Person of any action (a “Third-Party Claim”) with respect to Claims for which an Indemnifying Party may be obligated to provide indemnification indemnify an Indemnified Party pursuant to this Agreement, each such Indemnitee shall give each such Indemnifying : (a) upon receipt from a third party by the Indemnified Party written of notice thereof promptly after of a Claim or the Indemnified party becoming aware of such Third-a Claim in respect of which the Indemnified Party Claim; providedproposes to demand indemnification from the Indemnifying Party, howeverthe Indemnified Party shall give notice to that effect to the Indemnifying Party with reasonable promptness, provided that the failure of any Indemnitee to give such notice as required by this Section 5.5 shall not relieve each an Indemnifying Party of its obligations under this Article V, from any liability it may have to the Indemnified Party except to the extent that each such the Indemnifying Party is prejudiced by such failure to give notice. Such notice shall describe the Third-Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
thereby; (b) An Indemnifying Party may elect to defend or to seek to settle or compromise, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel reasonably acceptable to each Indemnitee, any Third-Party Claim, provided that in the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect case of such Third-Party Claim. Within 30 days of the receipt of notice Claims arising from an Indemnitee in accordance with Section 5.5(a) (or sooner, if the nature of such Third-Party Claim so requires)third parties, the Indemnifying Party shall notify each Indemnitee of its election whether have the right by notice to assume responsibility for such Third-Party Claim the Indemnified party not later than thirty (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 30) days after receipt of the notice described in paragraph (i) above to assume the control of the defense, compromise or settlement of the Claims, provided that such notice from each Indemniteeassumption shall, by its terms, be without costs to the Indemnified Party and the Indemnifying Party shall at the Indemnified Party's request furnish it with reasonable security against any costs or other liabilities to which it may be or become exposed by reason of such defense, compromise or settlement; (c) upon the assumption of control by the Indemnifying Party as aforesaid, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim)diligently proceed with the defense, and each Indemnitee shall cooperate in the defense compromise or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each Indemnitee the Claims at its sole expense, including employment of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees and the Indemnifying Party such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnified Party and, in connection therewith, the Indemnified Party shall co-operate fully, but at the expense of the Indemnifying Party) , to make available to the Indemnifying Party all pertinent information and witnesses under the Indemnified Party's control, make such assignments and take such other steps as in the opinion of counsel for the Indemnifying Party are necessary to enable the Indemnifying Party to conduct such defense; provided always that the Indemnified Party shall be paid by each such Indemnifying Party. If any entitled to reasonable security from the Indemnifying Party elects not for the expense, costs of other liabilities to assume responsibility for a Third-Party Claim (which election it may be made only in or may become exposed by reason of such co-operation; (d) the event final determination of a good faith dispute that a claim was inappropriately tendered under Section 5.2 any such Claims arising from third parties, including all related costs and expenses, will be binding and conclusive upon the Parties as to the validity or 5.3invalidity, as the case may be), each be of such Indemnitee may defend or Claims against the Indemnifying Party hereunder; and (subject e) should the Indemnifying Party fail to give notice to the following sentence) seek to compromise or settle such Third-Indemnified Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures as provided in connection with the claim, or paragraph (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemniteeabove, the Indemnifying Indemnified Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability entitled to make available that are necessary such settlement of the Claims as in its sole discretion may appear advisable, and such settlement or appropriate for such defense, within any other final determination of the reasonable discretion of each such Claims shall be binding upon the Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 4 contracts
Sources: Share Exchange Agreement (Playandwin Inc), Share Exchange Agreement (Playandwin Inc), Share Exchange Agreement (Playandwin Inc)
Procedure for Indemnification. (a) If an Indemnitee Investor Indemnified Person or an Indemnified Person (such Person being referred to as the "Indemnitee") shall receive notice or otherwise learn of the assertion by a person (including any governmental entity) Person who is not a party to this Agreement or to any of the Transaction Documents of any claim or of the commencement by any such Person of any action (a “Third-Party "Claim”") with respect to which an the other party (the "Indemnifying Party Party") may be obligated to provide indemnification pursuant to this Agreementindemnification, each such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after becoming aware of such Third-Party Claim; provided, however, that the failure of any Indemnitee to give notice as required by provided in this Section 5.5 9.3 shall not relieve each the applicable Indemnifying Party of its obligations under this Article VIX, except to the extent that each such Indemnifying Party is materially prejudiced by such failure to give notice; provided, further, that the applicable Indemnifying Party shall have no obligations under Section 9.2(a)(i) or Section 9.2(b)(i), as applicable, unless such written notice is received by the Indemnifying Party within the survival periods set forth in Section 9.1. Such notice shall describe the Third-Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each or is claimed against such Indemnitee.
(b) An Indemnifying Party may elect to defend or to seek to compromise, settle or compromisedefend, at such Indemnifying Party’s 's own expense and by such Indemnifying Party’s 's own counsel reasonably acceptable to each Indemniteecounsel, any Third-Party Claim; provided, provided however, that the Indemnifying Party must confirm in writing that shall not compromise, settle or defend a Claim without the consent of the Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed). If an Indemnifying Party elects to compromise, settle or defend a Claim, it agrees that each Indemnitee is entitled to indemnification hereunder in respect of such Third-Party Claim. Within shall, within 30 days of the receipt of notice from an Indemnitee in accordance with pursuant to Section 5.5(a9.3(a) (or sooner, if the nature of such Third-Party Claim so requires), notify the Indemnifying Party shall notify each applicable Indemnitee of its election whether intent to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim)do so, and each such Indemnitee shall cooperate in a commercially reasonable manner in the defense compromise or settlement of, or compromise of defense against, such Third-Party Claim. After notice from an Indemnifying Party to each an Indemnitee of its election to assume responsibility for the defense of a Third-Party Claim, the Indemnitee shall have the right to participate in the defense thereof, at its own expense, and such Indemnifying Party shall not be liable to each such Indemnitee under this Article V IX for any legal or other expenses subsequently incurred by such Indemnitee in connection with the defense thereof (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereofIndemnitee); provided, howeverthat such Indemnitee shall have the right to employ one separate counsel reasonably satisfactory to the Indemnifying Party to represent such Indemnitee if (i) in the reasonable judgment of the Indemnitee, there are legal defenses available to such Indemnitee that if are different from or additional to those available to the Indemnifying Party, (ii) the Indemnifying Party shall authorize in writing the Indemnitee to retain a single, separate counsel at the Indemnifying Party's expense or (iii) the defendants in any such claim Claim include both the Indemnifying Party and one or more Indemnitees and the Indemnitee and, in such Indemnitees’ Indemnitee's reasonable judgment there exists judgment, a conflict of interest between such Indemnitees Indemnitee and the such Indemnifying Party exists in respect of such Indemnitees Claim, and only in the events listed in clauses (i) through (iii) of this paragraph (b) shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any an Indemnifying Party elects not to assume responsibility for compromise, settle or defend against a Third-Party Claim (which Claim, or fails to notify an Indemnitee of its election may be made only as provided in this Section 9.3 within 30 days of notice from the event of a good faith dispute that a claim was inappropriately tendered under Indemnitee pursuant to Section 5.2 or 5.3, as the case may be9.3(a), each such Indemnitee may compromise, settle or defend or (subject to such Claim at the following sentence) seek to compromise or settle such Third-Party Claim without prior written notice to each expense of such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claimclaim, each the applicable Indemnitee shall make available to such Indemnifying Party any personnel and or any books, records or other documents within its control or which it otherwise has the ability to make available that are reasonably necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to If the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the aggregate amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by pursuant to this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less net of any expenses incurred in connection therewiththerewith or additional Losses incurred, shall promptly be repaid by each the applicable Indemnitee to each the applicable Indemnifying Party.
(ge) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and and, at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 4 contracts
Sources: Investment Agreement (Global Signal Inc), Investment Agreement (Fortress Investment Group LLC), Investment Agreement (Fortress Investment Holdings LLC)
Procedure for Indemnification. (a) If an Indemnitee any Indemnified Party becomes aware that any amounts are or will be owed to it pursuant to Section 6.1, then it shall receive notice or otherwise learn promptly notify the Indemnifying Party thereof and, promptly thereafter, it shall submit to the Indemnifying Party a certificate indicating the amounts owing to it and the calculation thereof; provided, however, that the Indemnified Party shall notify the Indemnifying Party in writing as soon as reasonably practicable following receipt of the any written assertion by a person (including any governmental entity) Person who is not a party to this Agreement (or to an Affiliate or an officer, director or employee of any of the Transaction Documents foregoing) of any claim or of the commencement by any such Person of any action or proceeding (each, a “Third-Party Claim”) with respect to which an the Indemnifying Party may be obligated to provide indemnification pursuant to this Agreement, each such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after becoming aware of such Third-Party Claim; provided, however, that the failure of any Indemnitee to give notice as required by this Section 5.5 shall not relieve each Indemnifying Party of its obligations under this Article V, except to the extent that each such Indemnifying Party is prejudiced by such failure to give noticehereunder. Such written notice shall describe the Third-Party Claim in reasonable detail, and . Failure to deliver such notices shall indicate not impact the Indemnified Parties’ right to indemnity hereunder or the amount (estimated if necessary) of thereof, except to the Indemnifiable Loss that has been or may be sustained extent the Indemnifying Party’s rights are actually materially prejudiced by each such Indemniteedelay.
(b) An The Indemnifying Party may elect to defend compromise or to seek to settle or compromisedefend, at such the Indemnifying Party’s own expense and by such the Indemnifying Party’s own counsel reasonably acceptable to each Indemniteecounsel, any Third-Party Claim, provided that . If the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled elects to indemnification hereunder in respect of such defend a Third-Party Claim. Within 30 Claim it shall, within fifteen (15) days of the receipt of the notice from an Indemnitee in accordance with Section 5.5(a) referred to above (or sooner, if the nature of such Third-Party Claim so requires), notify the Indemnifying Indemnified Party of its intent to do so, and the Indemnified Party shall notify each Indemnitee of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim), and each Indemnitee shall reasonably cooperate in the defense or settlement or compromise of or defense against such Third-Party Claim. After notice from an The Indemnifying Party shall pay the Indemnified Party’s fees and expenses reasonably incurred in connection with such cooperation. If the Indemnifying Party elects not to each Indemnitee of its election to assume responsibility for defend against a Third-Party Claim, such Indemnifying or fails to notify the Indemnified Party shall not be liable to each such Indemnitee under of its election as provided in this Article V for any legal or other expenses (except expenses approved in advance by Section, the Indemnified Party may, at the Indemnifying Party) subsequently incurred by each ’s cost and expense, defend such Indemnitee Third-Party Claim reasonably and in connection with good faith on behalf of and for the defense thereof; provided, however, that if the defendants in any such claim include both account and risk of the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees and but only to the extent that the Indemnified Party is entitled to receive indemnification from the Indemnifying Party such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory hereunder. Notwithstanding anything herein to the Indemnifying Party) contrary, no Party shall be paid by each such Indemnifying Party. If consent to entry of any Indemnifying Party elects not judgment nor enter into or consent to assume responsibility for any settlement or compromise with respect to any part of a Third-Party Claim (which election may without the written consent of the other Party and consent shall not be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 unreasonably withheld, unless such judgment, settlement or 5.3, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility provides solely for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, money damage or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in other payments which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the Indemnifying Party shall be deemed agrees to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party Claim, pay and (ii) such settlement does not provide for any non-monetary relief includes an unconditional release by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement claimant or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee plaintiff of the Indemnifying Party’s response to the claim. If each such Indemnifying Indemnified Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim from all liability relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee This Section 6.2 shall cooperate with such Indemnifying Party in a reasonable manner, and at survive the cost and expense termination of such Indemnifying Party, in prosecuting any subrogated right or claimthis Agreement.
Appears in 4 contracts
Sources: Servicing Agreement (Santander Drive Auto Receivables LLC), Servicing Agreement (Santander Drive Auto Receivables LLC), Servicing Agreement (Santander Drive Auto Receivables LLC)
Procedure for Indemnification. (a) If Except as may be set forth in a Related Agreement, if an Indemnitee shall receive notice or otherwise learn of the assertion by a person Person (including including, without limitation, any governmental entity) who is not a party to this Agreement or to any of the Transaction Documents Related Agreements of any claim or of the commencement by any such Person of any action Action (a “"Third-Party Claim”") with respect to which an Indemnifying Party may be obligated to provide indemnification pursuant to this Agreement, each such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after becoming aware of such Third-Party Claim; provided, however, provided that the failure of any Indemnitee to give notice as required by this Section 5.5 5.04 shall not relieve each the Indemnifying Party of its obligations under this Article V, except to the extent that each such Indemnifying Party is prejudiced by such failure to give notice. Such notice shall describe the Third-Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
(b) An Indemnifying Party may elect to defend or to seek to settle or compromise, at such Indemnifying Party’s 's own expense and by such Indemnifying Party’s 's own counsel reasonably acceptable to each Indemniteecounsel, any Third-Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each the Indemnitee is entitled to indemnification hereunder in respect of such Third-Party Claim. Within 30 days of the receipt of notice from an Indemnitee in accordance with Section 5.5(a5.04(a) (or sooner, if the nature of such Third-Party Claim so requires), the Indemnifying Party shall notify each the Indemnitee of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each the Indemnitee of its election within 30 days after receipt of such notice from each the Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim), and each such Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each an Indemnitee of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, provided that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ ' reasonable judgment there exists a conflict of interest between such Indemnitees and the such Indemnifying Party exists in respect of such claim, such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any an Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 5.01 or 5.35.02, as the case may be), each ) such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim Claim. Notwithstanding the foregoing, an Indemnitee may not settle or compromise any claim without prior written notice to each such the Indemnifying Party, which shall have the option within fifteen ten days following the receipt of such notice (i) to reject disapprove the settlement and assume all past and future responsibility for the claim, including reimbursing each the Indemnitee for prior expenditures in connection with the claim, or (ii) to reject disapprove the settlement and continue to refrain from participation in the defense of the claim, in which event each such the Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each the Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such the Indemnifying Party’s 's right to contest each the Indemnitee’s 's right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such the Indemnifying Party makes no response to such written notice from an the Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each the Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 5.04 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each the Indemnitee of a written release from all liability in respect of such Third-Party Claim, Claim (and (ii) provided further that such settlement does may not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents theretowithout the written consent of Indemnitee). In the event any the Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim Claim, free of any participation by such Indemnifying Party, at each such Indemnitee’s 's sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such the offer of settlement to settle or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), ) plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s 's continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an the Indemnitee to each the applicable Indemnifying Party. Each such Such Indemnifying Party shall have a period of 30 15 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claimrespond thereto. If each such Indemnifying Party does not so notify each respond within such Indemnitee during such 3015-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 3015-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party party under applicable law or under this Agreement or any other agreement or arrangement between the PartiesAgreement.
(f) In addition to any adjustments required pursuant to Section 5.45.03, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each the Indemnitee to each the Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 4 contracts
Sources: Distribution Agreement (Energy Research Corp /Ny/), Distribution Agreement (Evercel Inc), Tax Sharing Agreement (Evercel Inc)
Procedure for Indemnification. (a) If Except as may be set forth in a Related Agreement, if an Indemnitee Indemnified Person shall receive written notice or otherwise learn of the assertion by a person Person (including including, without limitation, any governmental entityGovernmental Authority) who is not a party to this Agreement or to any of the Transaction Documents Related Agreements of any claim or of the commencement by any such Person of any action (a “Third-Party Claim”) Action with respect to which an Indemnifying Party may be obligated to provide indemnification pursuant to this AgreementAgreement (a "THIRD-PARTY CLAIM"), each such Indemnitee Indemnified Person shall give each such the Indemnifying Party written notice thereof promptly after becoming aware of such Third-Party Claim; provided, howeverPROVIDED, that the failure of any Indemnitee Indemnified Person to give notice as required by this Section 5.5 5.04 shall not relieve each the Indemnifying Party of its obligations under this Article V, except to the extent that each such Indemnifying Party is materially prejudiced by such failure to give notice. Such notice shall describe the Third-Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been claimed against or may be sustained by each such IndemniteeIndemnified Person.
(b) An Indemnifying Party may elect to defend or to seek to settle or compromise, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel reasonably acceptable to each Indemnitee, any Third-Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect of such Third-Party Claim. Within 30 15 days of the receipt of notice from an Indemnitee Indemnified Person in accordance with Section 5.5(a5.04(a) (or sooner, if the nature of such Third-Party Claim so requires), the Indemnifying Party shall notify each Indemnitee the Indemnified Person of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee the Indemnified Person of its election within 30 15 days after receipt of such notice from each Indemniteethe Indemnified Person, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim). An election not to assume responsibility for such Third-Party Claim may only be made in the event of a good faith dispute that a Third-Party Claim is not covered as an Indemnifiable Loss under the grounds specified in Section 5.01 or 5.02, as the case may be. Subject to Section 5.04(e) hereof, an Indemnifying Party may elect to defend or to seek to settle or compromise, at such Indemnifying Party's own expense and each Indemnitee by counsel reasonably satisfactory to the Indemnified Person, any Third-Party Claim, PROVIDED that (i) the Indemnifying Party must confirm in writing that it agrees that the Indemnified Person is entitled to indemnification hereunder in respect of such Third-Party Claim and (ii) no compromise or settlement shall be made without the prior written consent of the Indemnified Person, which consent shall not be unreasonably withheld.
(c) In the event that the Indemnifying Party elects to assume responsibility for the Third-Party Claim, pursuant to Section 5.04(b) above, (i) the Indemnified Person shall cooperate in the defense or settlement or compromise of such Third-Party Claim, including making available to the Indemnifying Party any personnel and any books, records or other documents within the Indemnified Person's control or which it otherwise has the ability to make available that are necessary or appropriate for the defense of the Third-Party Claim, (ii) the Indemnifying Party shall keep the Indemnified Person reasonably informed regarding the strategy, status and progress of the defense of the Third-Party Claim, and (iii) the Indemnifying Party shall consider, in good faith, the opinions and suggestions of the Indemnified Person with respect the Third-Party Claim. After notice from an Indemnifying Party to each Indemnitee an Indemnified Person of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee Indemnified Person under this Article V for any legal or other costs or expenses (except costs or expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee Indemnified Person in connection with the defense thereof; provided, howeverPROVIDED, that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees Indemnified Persons and in such Indemnitees’ Indemnified Persons' reasonable judgment there exists a conflict of interest between such Indemnitees Indemnified Persons and the such Indemnifying Party exists in respect of such Indemnitees claim, such Indemnified Persons shall have the right to employ separate counsel and in that event the reasonable fees fees, costs and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. .
(d) If any an Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in Claim, the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3, as the case may be), each such Indemnitee Indemnified Person may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim Claim. Notwithstanding the foregoing, an Indemnified Person may not settle or compromise any claim without prior written notice to each such the Indemnifying Party, which shall have the option within fifteen ten days following the receipt of such notice (i) to reject disapprove the settlement and to then assume all past and future responsibility for the claim, including immediately reimbursing each Indemnitee the Indemnified Person for prior expenditures in connection with the claim, or (ii) to reject disapprove the settlement and continue to refrain from participation in the defense of the claim, in which event each such the Indemnified Person may, in its sole discretion, proceed with the settlement and the Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewithsettlement, or (iii) to approve and pay the amount of the settlement, reserving each such the Indemnifying Party’s 's right to contest each Indemnitee’s the Indemnified Person's right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such the Indemnifying Party makes no response to such written notice from an Indemniteenotice, the Indemnifying Party shall be deemed to have elected option (ii). When the Indemnifying Party chooses, or is deemed to have chosen, option (ii) or (iii), the issue of whether the Indemnified Person has a right to indemnity under this Article V shall be resolved by arbitration pursuant to the provisions of Section 9.14 hereof. If the Indemnifying Party does not prevail at such arbitration, the Indemnifying Party shall promptly reimburse the Indemnified Person for all Indemnifiable Losses, plus interest on such amounts at the lower of (i) 10 % or (ii) the highest legal interest rate, accruing from the date of payment by the Indemnified Person.
(ce) If Notwithstanding the foregoing, if an Indemnified Person reasonably and in good faith determines that (i) the Indemnifying Party chooses is not financially capable to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any a Third-Party Claim unless (i) such and to provide full indemnification with respect to any settlement thereof or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, 's attorney is not adequately representing the obligation of such Indemnifying Party to each such Indemnitee Indemnified Person's interests with respect to such Third-Party Claim shall be equal to (i) Claim, the costs and expenses of each such Indemnitee prior Indemnified Person may, by notice to the date Indemnifying Party, assume the exclusive right to defend, compromise or settle such Third-Party Claim and the Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to shall remain responsible for, and be bound by the extent such costs and expenses are otherwise indemnifiable hereunder)resolution of, plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(ef) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee the Indemnified Person to each the applicable Indemnifying Party. Each such Such Indemnifying Party shall have a period of 30 15 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claimrespond thereto. If each such Indemnifying Party does not so notify each respond within such Indemnitee during such 3015-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 3015-day period or rejects such claim in whole or in part, each such Indemnitee Indemnified Person shall be free to pursue such remedies as may be available to such Party party under applicable law or under this Agreement or any other agreement or arrangement between the PartiesAgreement.
(fg) In addition to any adjustments required pursuant to Section 5.45.03, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee the Indemnified Person to each the Indemnifying Party.
(gh) In the event of payment by an Indemnifying Party to any Indemnitee Indemnified Person in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee Indemnified Person as to any events or circumstances in respect of which such Indemnitee Indemnified Person may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party ClaimClaim or against any other party that may be liable. Such Indemnitee Indemnified Person shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 4 contracts
Sources: Distribution Agreement (Hilton Hotels Corp), Distribution Agreement (Park Place Entertainment Corp), Merger Agreement (Hilton Hotels Corp)
Procedure for Indemnification. (a) If an Indemnitee Investor Indemnified Person or a Company Indemnified Person (such Person being referred to as the "Indemnitee") shall receive notice or otherwise learn of the assertion by a person (including any governmental entity) Person who is not a party to this Agreement or to any of the Transaction Documents of any claim or of the commencement by any such Person of any action (a “Third-Party "Claim”") with respect to which an the other party (the "Indemnifying Party Party") may be obligated to provide indemnification pursuant to this Agreementindemnification, each such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after becoming aware of such Third-Party Claim; provided, however, that the failure of any Indemnitee to give notice as required by provided in this Section 5.5 8.3 shall not relieve each the applicable Indemnifying Party of its obligations under this Article VVIII, except to the extent that each such Indemnifying Party is materially prejudiced by such failure to give notice; provided, further, that the applicable Indemnifying Party shall have no obligations under Section 8.2(a)(i) or Section 8.2(b)(i), as applicable, unless such written notice is received by the Indemnifying Party within the survival periods set forth in Section 8.1. Such notice shall describe the Third-Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each or is claimed against such Indemnitee.
(b) An Indemnifying Party may elect to defend or to seek to compromise, settle or compromisedefend, at such Indemnifying Party’s 's own expense and by such Indemnifying Party’s 's own counsel reasonably acceptable to each Indemniteecounsel, any Third-Party Claim; provided, provided however, that the Indemnifying Party must confirm in writing that shall not compromise, settle or defend a Claim without the consent of the Indemnitee (which consent shall not be unreasonably withheld). If an Indemnifying Party elects to compromise, settle or defend a Claim, it agrees that each Indemnitee is entitled to indemnification hereunder in respect of such Third-Party Claim. Within shall, within 30 days of the receipt of notice from an Indemnitee in accordance with pursuant to Section 5.5(a8.3(a) (or sooner, if the nature of such Third-Party Claim so requires), notify the Indemnifying Party shall notify each applicable Indemnitee of its election whether intent to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim)do so, and each such Indemnitee shall cooperate in a commercially reasonable manner in the defense compromise or settlement of, or compromise of defense against, such Third-Party Claim. After notice from an Indemnifying Party to each an Indemnitee of its election to assume responsibility for the defense of a Third-Party Claim, the Indemnitee shall have the right to participate in the defense thereof, at its own expense, and such Indemnifying Party shall not be liable to each such Indemnitee under this Article V VIII for any legal or other expenses subsequently incurred by such Indemnitee in connection with the defense thereof (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereofIndemnitee); provided, howeverthat such Indemnitee shall have the right to employ one separate counsel reasonably satisfactory to the Indemnifying Party to represent such Indemnitee if (i) in the reasonable judgment of the Indemnitee, there are legal defenses available to such Indemnitee that if are different from or additional to those available to the Indemnifying Party, (ii) the Indemnifying Party shall authorize in writing the Indemnitee to retain a single, separate counsel at the Indemnifying Party's expense or (iii) the defendants in any such claim Claim include both the Indemnifying Party and one or more Indemnitees and the Indemnitee and, in such Indemnitees’ Indemnitee's reasonable judgment there exists judgment, a conflict of interest between such Indemnitees Indemnitee and the such Indemnifying Party exists in respect of such Indemnitees Claim, and only in the events listed in clauses (i) through (iii) of this paragraph (b) shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any an Indemnifying Party elects not to assume responsibility for compromise, settle or defend against a Third-Party Claim (which Claim, or fails to notify an Indemnitee of its election may be made only as provided in this Section 8.3 within 30 days of notice from the event of a good faith dispute that a claim was inappropriately tendered under Indemnitee pursuant to Section 5.2 or 5.3, as the case may be8.3(a), each such Indemnitee may compromise, settle or defend or (subject to such Claim at the following sentence) seek to compromise or settle such Third-Party Claim without prior written notice to each expense of such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claimclaim, each the applicable Indemnitee shall make available to such Indemnifying Party any personnel and or any books, records or other documents within its control or which it otherwise has the ability to make available that are reasonably necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to If the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the aggregate amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by pursuant to this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less net of any expenses incurred in connection therewiththerewith or additional Losses incurred, shall promptly be repaid by each the applicable Indemnitee to each the applicable Indemnifying Party.
(ge) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and and, at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 4 contracts
Sources: Stock Purchase Agreement (Hexcel Corp /De/), Stock Purchase Agreement (Hexcel Corp /De/), Stock Purchase Agreement (Hexcel Corp /De/)
Procedure for Indemnification. (a) If an Indemnitee shall receive notice or otherwise learn of the assertion by a person Person (including any governmental entity) who is not a party to this Agreement or to any of the Transaction Documents Ancillary Agreements of any claim or of the commencement by any such Person of any action (a “Third-Party Claim”) with respect to which an Indemnifying Party may be obligated to provide indemnification pursuant to this Agreement, each such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after becoming aware of such Third-Party Claim; provided, however, that the failure of any Indemnitee to give notice as required by this Section 5.5 6.6 shall not relieve each Indemnifying Party of its obligations under this Article VARTICLE VI, except to the extent that each such Indemnifying Party is prejudiced by such failure to give notice. Such notice shall describe the Third-Party Claim in reasonable detail, detail and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
(b) An Indemnifying Party may elect to defend or to seek to settle or compromise, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel reasonably acceptable to each Indemnitee, any Third-Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect of such Third-Party Claim. Within 30 days of the receipt of notice from an Indemnitee in accordance with Section 5.5(a6.6(a) (or sooner, if the nature of such Third-Party Claim so requires), the Indemnifying Party shall notify each Indemnitee of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim), and each Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each Indemnitee of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V ARTICLE VI for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees and the Indemnifying Party Party, such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 6.2 or 5.36.3, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records records, or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 6.6 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party Claim, Claim and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), ) plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.46.5, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement settlement, or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 4 contracts
Sources: Separation and Distribution Agreement (M-Tron Industries, Inc.), Separation and Distribution Agreement (M-Tron Industries, Inc.), Separation and Distribution Agreement (M-Tron Industries, Inc.)
Procedure for Indemnification. (a) If An Indemnified Party seeking indemnification hereunder, within the relevant limitation period provided for in Section 7.1 above, shall give written notice (the “Claim Notice”) of any Indemnification Claim (i) in the case of an Indemnitee shall receive notice or otherwise learn Indemnification Claim against Buyer, to Buyer and (ii) in the case of an Indemnification Claim against Shareholder, to Shareholder, reasonably promptly, but in any event (A) prior to expiration of the Survival Period and (B) if such Indemnification Claim relates to the assertion against an Indemnified Party of any Claim by a person (including any governmental entity) who is not a third party to this Agreement or to any of the Transaction Documents of any claim or of the commencement by any such Person of any action (a “Third-Third Party Claim”), within fifteen (15) with respect to which an Indemnifying days after receipt by the Indemnified Party may be obligated to provide indemnification pursuant to this Agreement, each such Indemnitee shall give each such Indemnifying Party of written notice thereof promptly after becoming aware of a legal process relating to such Third-Third Party Claim; provided, however, that the failure of any Indemnitee or delay to give notice as required by this Section 5.5 so notify the Indemnifying Party shall not relieve each the Indemnifying Party of its obligations under this Article Vany obligation or liability that the Indemnifying Party may have to the Indemnified Party, except unless, and then only to the extent that each such that, the Indemnifying Party demonstrates that the Indemnifying Party’s ability to defend or resolve such Indemnification Claim is prejudiced by thereby. Any such failure to give notice. Such notice Claim Notice shall describe in reasonable detail the Third-facts and circumstances on which the asserted Indemnification Claim is based and specify the amount of such Indemnification Claim if then ascertainable. Any Claim Notice relating to a Third Party Claim in reasonable detailshall be accompanied by copies of all relevant documentation with respect to such Third Party Claim, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has including any summons, complaint or other pleading which may have been served, any written demand or may be sustained by each such Indemniteeany other document or instrument.
(b) An The Indemnifying Party may elect shall have thirty (30) days after receipt of any such Indemnification Claim pursuant hereto to defend give notice to the Indemnified Party disputing such Indemnification Claim or the claimed amount set forth therein (a “Dispute Notice”). Absent delivery of a Dispute Notice or affirmative indication of agreement during such thirty (30) day period, the Indemnifying Party shall automatically be deemed to seek have agreed to settle the amount or compromisemethod of determination set forth in the Indemnification Claim. All disputed Indemnification Claims shall be resolved by Buyer and Shareholder, in accordance with either (i) a mutual agreement among Buyer and Shareholder, which shall be memorialized in writing, or (ii) the final determination of a final non-appealable order of a court of competent jurisdiction.
(c) Upon receipt of a Claim Notice for indemnity from an Indemnified Party pursuant to Section 7.4 in respect of a Third Party Claim the Indemnifying Party shall have the right, upon written notice given to the Indemnified Party delivered within thirty (30) days after receipt of a Claim Notice relating to a Third Party Claim, to assume the defense or handling of such Third Party Claim at such the Indemnifying Party’s own expense and by sole expense, but shall allow the Indemnified Party a reasonable opportunity to participate in the defense of such Indemnifying Party’s Third Party Claim with its own counsel reasonably acceptable to each Indemnitee, any Third-Party Claim, and at its own expense; provided that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is shall not be entitled to indemnification hereunder in respect assume control of such Third-defense (which shall be controlled by the Indemnified Party) and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) in the reasonable opinion of the Indemnified Party’s outside counsel, a conflict, or potential conflict, of interests exists between the Indemnified Party and the Indemnifying Party in connection with such Third Party Claim, or (ii) the Indemnification Claim relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, or the Indemnification Claim seeks an injunction or similar equitable relief against the Indemnified Party or any its Affiliates.
(d) If the Indemnifying Party chooses to defend any Third Party Claim, the parties hereto shall reasonably cooperate in the defense of such Third Party Claim. Within 30 days The Indemnifying Party shall select counsel (and local counsel, as necessary) to conduct the defense or handling of such Third Party Claim reasonably satisfactory to the Indemnified Party. The Indemnifying Party shall defend or handle such Third Party Claim in such manner as is reasonable under the circumstances and shall keep the Indemnified Party reasonably apprised of the receipt of notice from an Indemnitee in accordance with Section 5.5(a) (or sooner, if the nature status of such Third-Third Party Claim so requires)Claim. The Indemnifying Party shall not, without the prior express written consent of the Indemnified Party, (A) consent to a settlement of, compromise or discharge of, or consent to the entry of any judgment with respect to, any Third Party Claim, unless such settlement, compromise, discharge or entry of judgment does not involve any finding or admission of any violation of Law or admission of any wrongdoing by the Indemnified Party and the Indemnifying Party shall notify each Indemnitee pay or cause to be paid all amounts arising out of its election whether to assume responsibility such settlement or judgment concurrently with the effectiveness of such settlement or judgment (except as otherwise provided in such judgment). The Indemnified Party shall make available all information and assistance reasonably available and necessary for such Third-the defense of the Third Party Claim as the Indemnifying Party may reasonably request and shall cooperate with the Indemnifying Party in such defense. Notwithstanding anything to the contrary in this Section 7.5(d), the Indemnified Party shall not, without the prior written consent of the Indemnifying Party (provided which consent may not be unreasonably withheld, conditional or delayed), agree to a settlement of any Third Party Claim that if is being defended and handled by the Indemnifying Party.
(e) If the Indemnifying Party does not so notify each Indemnitee of its election give written notice to the Indemnified Party within 30 days ten (10) Business Days after receipt of such notice the Claim Notice from each Indemnitee, the Indemnified Party of a Third Party Claim that the Indemnifying Party shall be deemed to have has elected not to assume responsibility for such Third-Party Claim), and each Indemnitee shall cooperate in the defense or settlement or compromise handling of such Third-Third Party Claim. After notice from an , the Indemnified Party may, at the Indemnifying Party’s expense, select counsel reasonably satisfactory to the Indemnifying Party to each Indemnitee of its election to assume responsibility for a Third-defend or handle such Third Party Claim, such Claim in consultation with the Indemnifying Party shall not be liable to each such Indemnitee and in a manner that is reasonable under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereofcircumstances; provided, however, that if the defendants in any such claim include both Indemnified Party shall keep the Indemnifying Party and one timely apprised of the status of such Third Party Claim. The Indemnified Party shall not agree to a settlement of, or more Indemnitees and in such Indemnitees’ reasonable consent to the entry of any judgment there exists a conflict of interest between such Indemnitees and to any Third Party Claim or demand for which it is seeking indemnification from the Indemnifying Party or admit to any liability with respect to such Indemnitees shall have claim or demand without the right to employ separate counsel and in that event prior express written consent of the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, consent may be granted or (ii) to reject the settlement and continue to refrain from participation denied in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, sole discretion. If the Indemnified Party defends or (iv) to approve and agree to pay the settlement. In the event handles such Indemnifying Third Party makes no response to such written notice from an IndemniteeClaim, the Indemnifying Party shall cooperate with the Indemnified Party and shall be deemed entitled to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to participate in but not control the defense of such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Third Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party Claim, with its own counsel and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole its own expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition Notwithstanding anything in this Agreement to any adjustments required pursuant to Section 5.4the contrary, if for the amount purposes of determining the failure of any Indemnifiable Loss shallrepresentations or warranties to be true and correct or the breach of any covenants and agreements, at and calculating Losses or a party’s indemnification obligation hereunder, any time subsequent to materiality or similar qualifications in the payment required by this Agreementrepresentations, be reduced by recoverywarranties, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party covenants and agreements shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claimdisregarded.
Appears in 4 contracts
Sources: Stock Purchase Agreement (Match Group, Inc.), Stock Purchase Agreement (Match Group, Inc.), Stock Purchase Agreement (Match Group, Inc.)
Procedure for Indemnification. (a) If an Indemnitee Each claim for indemnification, including Third Party Claims, shall receive be made by delivery by the Person seeking to be indemnified (the “Indemnified Party”) to the Party from whom indemnification is sought (the “Indemnifying Party”) of written notice or otherwise learn of the assertion by a person (including any governmental entity) who is not a party to this Agreement or to any of the Transaction Documents of any claim or of the commencement by any such Person of any action (a “Third-Party ClaimClaim Notice”) with respect containing details reasonably sufficient to which an disclose to the Indemnifying Party may be obligated the nature and scope of the claim including an estimate of the amount of claimed Adverse Consequences and copies of all relevant pleadings, documents and information, in each case to provide indemnification pursuant to this Agreementthe extent reasonably practicable, each such Indemnitee shall give each such Indemnifying within thirty (30) days after the Indemnified Party written notice thereof promptly after becoming aware obtains knowledge of such Third-Party Claim; provided, however, that claim. Any failure in the failure delivery of any Indemnitee to give notice as required by this Section 5.5 a Claim Notice shall not relieve each affect the obligations of the Indemnifying Party of its obligations under this Article VParty, except to the extent that each such the rights and remedies of the Indemnifying Party is are actually materially prejudiced by such as a result of the failure to give notice. Such notice shall describe the Third-Party give, or delay in giving, such Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such IndemniteeNotice.
(b) An If, pursuant to a Third Party Claim, any Action is brought against an Indemnified Party for which the Indemnifying Party may elect be required to defend or to seek to settle or compromise, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel reasonably acceptable to each Indemnitee, any Third-indemnify the Indemnified Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect of such Third-Party Claim. Within 30 days of the receipt of notice from an Indemnitee in accordance with Section 5.5(a) (or sooner, if the nature of such Third-Party Claim so requires), the Indemnifying Party shall notify each Indemnitee of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each Indemniteehereunder, the Indemnifying Party shall be deemed entitled to have elected not to assume responsibility for such Third-Party Claim), and each Indemnitee shall cooperate participate in the defense or settlement or compromise of such ThirdAction and, to the extent that it elects, by written notice to the Indemnified Party within ten (10) Business Days after receipt of the relevant Claim Notice, to assume and control the defense of such Action (unless (i) the Indemnified Party determines in good faith that a conflict of interest may exist such that joint representation of the Indemnified Party and the Indemnifying Party would be inappropriate, (ii) greater than 50% of the Adverse Consequences resulting from such claim are reasonably anticipated to be incurred by the Indemnified Party because such Adverse Consequences exceed the Cap (if applicable), (iii) material equitable or other non-monetary relief is sought from any Indemnified Party Claimpursuant to such Action, or (iv) the claim is brought by a Governmental Authority). After notice from an the Indemnifying Party to each Indemnitee the Indemnified Party of its election to assume responsibility for a Third-Party Claimand control the defense of such Action, such the Indemnifying Party shall not not, so long as it diligently conducts such defense, be liable to each such Indemnitee the Indemnified Party under this Article V VIII for any legal fees of other counsel or any other expenses (except expenses approved with respect to the defense of such Action, in advance by the Indemnifying Party) each case subsequently incurred by each such Indemnitee the Indemnified Party in connection with the defense thereof; providedof such Action, howeverother than reasonable costs of investigation. If the Indemnifying Party assumes the defense of such Action, (i) such assumption will, unless additional information emerges after the assumption to change this conclusion, conclusively establish for purposes of this Agreement that the Third Party Claims are within the scope of and subject to indemnification (but no such assumption shall affect the applicability of any limit on indemnification contained in Section 8.5), and (ii) the Indemnifying Party shall not, without the Indemnified Party’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed, compromise or settle such Action, or consent to the entry of any judgment with respect to such Action, that if (A) does not involve only the defendants in any such claim include both payment of monetary damages by the Indemnifying Party and one does not otherwise result in a final resolution of the Indemnified Person’s liability with respect to the Third Party Claim (including, in the case of a compromise or more Indemnitees settlement, an unconditional written release of the Indemnified Part), (B) is reasonably expected to materially and adversely affect the Indemnified Party, including the imposition of any materially adverse restriction, condition, injunction or other equitable relief upon the Indemnified Party, (C) encumbers any of the assets of the Indemnified Party, (D) involves any finding or omission of any violation of Law or admission of any wrong doing by the Indemnified Party. If the Indemnified Party withholds its consent unreasonably, the Indemnified Party shall be obligated for any future expenses and excess settlement amounts. The Indemnifying Person shall pay all amounts of such permissible compromise, settlement or judgment concurrently with the effectiveness thereof and otherwise remain responsible for any Adverse Consequences the Indemnified Party may suffer that are caused by, relating to, or arising out of the Third Person Claim to the fullest extent provided in such Indemnitees’ reasonable judgment there exists this Article VIII. If a conflict of interest between such Indemnitees Claim Notice regarding a Third Party Claim is given to an Indemnifying Party and the Indemnifying Party does not, within ten (10) Business Days after the Indemnifying Party’s receipt of such Indemnitees Claim Notice, give notice to the Indemnified Party of its election to assume the defense of such Action, the Indemnifying Party will be deemed bound by any determination made in such Action or any compromise or settlement effected by the Indemnified Party. The Indemnified Party shall fully cooperate at its expense in connection with the defense of any such Third Party Claims, including providing reasonable access to the Indemnified Party’s records and personnel relating to such claim, and will have the right to participate in the defense of any Third Party Claim by counsel of its own choosing and at its own expense.
(c) Notwithstanding the provisions of Section 8.2(b), if the Indemnifying Party does not, or is not permitted under the terms hereof to, assume or retain control of the defense of an Action relating to a Third Party Claim, then the Indemnified Person (i) shall have the right to employ separate defend against the Third Person Claim (at the sole cost and expense of the Indemnifying Person (but subject to the limitations set forth in this Article VIII)), with counsel of the Indemnified Person’s choosing; and in that event the reasonable fees and expenses (ii) shall have full control of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3defense and Action, as the case may be), each such Indemnitee may defend or including (subject to the following sentenceprovisions of this Section 8.2(c)) seek any compromise or settlement thereof, and need not otherwise consult with the Indemnifying Person in connection therewith. If the Indemnified Person has assumed the defense pursuant to this Section 8.2(c), it shall not, without the prior written consent of the Indemnified Person, which consent shall not be unreasonably withheld, conditioned or delayed, compromise or settle such Third-Party any Third Person Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 consent to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free entry of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee judgment with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claimthereto.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 3 contracts
Sources: Contribution Agreement (New Jersey Resources Corp), Contribution Agreement (Dominion Midstream Partners, LP), Contribution Agreement (Dominion Midstream Partners, LP)
Procedure for Indemnification. (a) If Except as may be set forth in a Related Agreement, if an Indemnitee shall receive notice or otherwise learn of the assertion by a person Person (including including, without limitation, any governmental entity) who is not a party to this Agreement or to any of the Transaction Documents Related Agreements of any claim or of the commencement by any such Person of any action Action (a “"Third-Party Claim”") with respect to which an Indemnifying Party may be obligated to provide indemnification pursuant to this Agreement, each such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after becoming aware of such Third-Party Claim; provided, however, that the failure of any Indemnitee to give notice as required by this Section 5.5 shall not relieve each Indemnifying Party of its obligations under this Article V, except to the extent that each such Indemnifying Party is prejudiced by such failure to give notice. Such notice shall describe the Third-Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.to
(b) An Indemnifying Party may elect to defend or to seek to settle or compromise, at such Indemnifying Party’s 's own expense and by such Indemnifying Party’s 's own counsel reasonably acceptable to each Indemniteecounsel, any Third-Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect of such Third-Party Claim. Within 30 days of the receipt of notice from an Indemnitee in accordance with Section 5.5(a5.04(a) (or sooner, if the nature of such Third-Party Claim so requires), the Indemnifying Party shall notify each the Indemnitee of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each the Indemnitee of its election within 30 days after receipt of such notice from each the Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim), and each such Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each an Indemnitee of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying 33 Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ ' reasonable judgment there exists a conflict of interest between such Indemnitees and the such Indemnifying Party exists in respect of such claim, such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any an Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 5.01 or 5.35.02, as the case may be), each ) such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim Claim. Notwithstanding the foregoing, an Indemnitee may not settle or compromise any claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen ten days following the receipt of such notice (i) to reject disapprove the settlement and assume all past and future responsibility for the claim, including reimbursing each the Indemnitee for prior expenditures in connection with the claim, or (ii) to reject disapprove the settlement and continue to refrain from participation in the defense of the claim, in which event each such the Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each the Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such the Indemnifying Party’s 's right to contest each the Indemnitee’s 's right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such the Indemnifying Party makes no response to such written notice from an the Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each the Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 5.04 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each the Indemnitee of a written release from all liability in respect of such Third-Party Claim, Claim (and (ii) provided further that such settlement does may not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents theretowithout the written consent of Indemnitee). In the event any the Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim Claim, free of any participation by such Indemnifying Party, at each such Indemnitee’s 's sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such the offer of settlement to settle or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), ) plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and or (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s 's continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an the Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.the
Appears in 3 contracts
Sources: Reorganization and Distribution Agreement (Getty Petroleum Corp), Reorganization and Distribution Agreement (Getty Petroleum Marketing Inc), Reorganization and Distribution Agreement (Getty Petroleum Marketing Inc)
Procedure for Indemnification. (a) If an Indemnitee shall receive notice or otherwise learn Notices of the assertion by a person (including any governmental entity) who is not a party to claims under this Agreement or to any of the Transaction Documents of any claim or of the commencement by any such Person of any action Indemnified Party shall be given to the Purchaser or the Seller, as the case may be (a the “Third-Party ClaimIndemnifying Party”) with respect to which an Indemnifying Party may be obligated to provide indemnification pursuant to this Agreementwithin the relevant period specified in Article 8.3, each but in any event no later than 60 calendar days after such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after Indemnified Party’s first becoming aware of such Thirdclaim. In case of claims for inaccuracy in or breach of representations and warranties, such notice shall be made within the relevant survival period pursuant to Article 8.3. Such notice of claim shall specify in reasonable detail the factual basis of the claim and a non-binding estimate of the amount of Losses which are, or are to be, the subject of the claim (including any Losses which are contingent on the occurrence of any future event). If any Party Claimfails to give notice required pursuant to this Article 8.4(a) within the relevant period specified in Article 8.3, such Party shall not be entitled to make the relevant claim under this Agreement. Upon receipt of such notice, in the event that the Indemnifying Party does not agree with the contents of such notice of claim, it must notify the Indemnified Party of such disagreement within 14 Business Days of receiving the notice of claim, and the Parties agree to resolve such dispute through Article 10.3.
(b) If any claim is instituted by a third party against any Indemnified Party, the Indemnifying Party shall have the right, at its expense, to participate in or assume control of the negotiation, settlement or defense of such claim by advising the Indemnified Party of its election within 15 days of the date it receives notice of the claim. Even if the Indemnifying Party elects to participate in or assume control of such negotiation, settlement or defense, the Indemnified Party shall have the right to participate in the negotiation, settlement or defense of such third party claim and to retain counsel to act on its behalf; provided, however, that the failure fees and disbursements of any Indemnitee to give notice as required such counsel shall be paid by this Section 5.5 the Indemnified Party. The Indemnified Party shall not relieve each cooperate at the Indemnifying Party’s expense with the Indemnifying Party of its obligations under so as to permit the Indemnifying Party to conduct such negotiation, settlement and defense and for this Article V, except purpose shall preserve all relevant documents in relation to the extent that each such third party claim, allow the Indemnifying Party is prejudiced by access on reasonable notice to inspect and take copies of all such failure documents and require its personnel to give notice. Such notice shall describe provide such statements as the Third-Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
(b) An Indemnifying Party may elect reasonably require and to defend attend and give evidence at any trial or to seek to settle or compromise, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel reasonably acceptable to each Indemnitee, any Third-Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder hearing in respect of such Third-Party Claimthe third party claim. Within 30 days If, having elected to assume control of the receipt negotiation, settlement or defense of notice from an Indemnitee in accordance with Section 5.5(a) (or sooner, if the nature of such Third-Party Claim so requires)third party claim, the Indemnifying Party thereafter fails to conduct such negotiation, settlement or defense with reasonable diligence, then the Indemnified Party shall notify each Indemnitee of its election whether be entitled to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of control at its election within 30 days after receipt of such notice from each Indemnitee, own cost and the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim), and each Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each Indemnitee of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance bound by the Indemnifying Party) subsequently incurred results obtained by each the Indemnified Party with respect to such Indemnitee in connection with the defense thereof; third part claim, provided, however, that if in no event shall the defendants in any such claim include both Indemnified Party settle the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees and proceeding without the Indemnifying Party such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim without prior written notice to each such consent of the Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claimnot be unreasonably withheld, including reimbursing each Indemnitee for prior expenditures in connection with the claim, delayed or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii)conditioned.
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 3 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (SolarEdge Technologies Inc), Share Purchase Agreement (SolarEdge Technologies Inc)
Procedure for Indemnification. (a) 4.3.1 If an Indemnitee shall receive notice or otherwise learn of the assertion by a person (including any governmental entity) Person who is not a party to this Agreement or to any of the Transaction Documents of any claim or of the commencement by any such Person of any action Action (a “"Third-Party Claim”") with respect to which an Indemnifying Party may be obligated to provide indemnification pursuant to this Agreement, each such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after becoming aware of such Third-Party Claim; provided, however, that the failure of any Indemnitee to give notice as required by this Section 5.5 4.3 shall not relieve each the Indemnifying Party of its obligations under this Article VIV, except to the extent that each such Indemnifying Party is prejudiced by such failure to give notice. Such notice shall describe the Third-Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
(b) 4.3.2 An Indemnifying Party may elect to defend or to seek to settle or compromise, at such Indemnifying Party’s 's own expense and by such Indemnifying Party’s 's own counsel reasonably acceptable to each Indemniteecounsel, any Third-Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each the Indemnitee is entitled to indemnification hereunder in respect of such Third-Party Claim. Within 30 days of after the receipt of notice from an Indemnitee in accordance with Section 5.5(a) 4.3.1 hereof (or sooner, if the nature of such Third-Party Claim so requires), the Indemnifying Party shall notify each the Indemnitee of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each the Indemnitee of its election within 30 days after receipt of such notice from each the Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim), and each such Indemnitee shall cooperate in the defense or defense, settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each an Indemnitee of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V IV for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, that if the defendants or parties against which relief is sought in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ ' reasonable judgment there exists a conflict of interest between such Indemnitees and the such Indemnifying Party exists in respect of such claim, such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any an Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 4.1 or 5.34.2 hereof, as the case may be), each ) such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim Claim. Notwithstanding the foregoing, an Indemnitee may not settle or compromise any claim without prior written notice to each such the Indemnifying Party, which shall have the option within fifteen ten days following the receipt of such notice (i) to reject disapprove the settlement and assume all past and future responsibility for the claim, including reimbursing each the Indemnitee for prior expenditures in connection with the claim, or (ii) to reject disapprove the settlement and continue to refrain from participation in the defense of the claim, in which event each such the Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each the Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such the Indemnifying Party’s 's right to contest each the Indemnitee’s 's right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such the Indemnifying Party makes no response to such written notice from an the Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 3 contracts
Sources: Plan of Reorganization and Distribution Agreement (Abf Capital Corp), Plan of Reorganization and Distribution Agreement (Abf Capital Corp), Plan of Reorganization and Distribution Agreement (Abf Capital Corp)
Procedure for Indemnification. (a) If an Indemnitee Investor Indemnified Person or a Company Indemnified Person (such Person being referred to as the "Indemnitee") shall receive notice or otherwise learn of the assertion by a person (including any governmental entity) Person who is not a party to this Agreement or to any of the Transaction Documents of any claim or of the commencement by any such Person of any action (a “Third-Party "Claim”") with respect to which an the other party (the "Indemnifying Party Party") may be obligated to provide indemnification pursuant to this Agreementindemnification, each such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after becoming aware of such Third-Party Claim; provided, however, that the failure of any Indemnitee to give notice as required by provided in this Section 5.5 7.3 shall not relieve each the applicable Indemnifying Party of its obligations under this Article VVII, except to the extent that each such Indemnifying Party is prejudiced by such failure to give notice; provided, further, that the applicable Indemnifying Party shall have no obligations under this Article VII unless such written notice is received by the Indemnifying Party within the survival periods set forth in Section 7.1. Such notice shall describe the Third-Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each or is claimed against such Indemnitee. Such notice shall be a condition precedent to any liability of any Indemnifying Party for any Claim under the provisions for indemnification contained in this Agreement.
(b) An Indemnifying Party may elect to defend or to seek to compromise, settle or compromisedefend, at such Indemnifying Party’s 's own expense and by such Indemnifying Party’s 's own counsel reasonably acceptable to each Indemniteecounsel, any Third-Party Claim; provided, provided however, that the Indemnifying Party must confirm in writing that shall not compromise, settle or defend a Claim without the consent of the Indemnitee (which consent shall not be unreasonably withheld). If an Indemnifying Party elects to compromise, settle or defend a Claim, it agrees that each Indemnitee is entitled to indemnification hereunder in respect of such Third-Party Claim. Within shall, within 30 days of the receipt of notice from an Indemnitee in accordance with pursuant to Section 5.5(a7.3(a) (or sooner, if the nature of such Third-Party Claim so requires), notify the Indemnifying Party shall notify each applicable Indemnitee of its election whether intent to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim)do so, and each such Indemnitee shall cooperate in the defense compromise or settlement of, or compromise of defense against, such Third-Party Claim. After notice from an Indemnifying Party to each an Indemnitee of its election to assume responsibility for the defense of a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V VII for any legal or other expenses subsequently incurred by such Indemnitee in connection with the defense thereof (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereofIndemnitee); provided, however, that such Indemnitee shall have the right to employ one separate counsel reasonably satisfactory to the Indemnifying Party to represent such Indemnitee if the defendants in any such claim include included both the Indemnifying Party and one or more Indemnitees and the Indemnitee and, in such Indemnitees’ Indemnitee's reasonable judgment there exists judgment, a conflict of interest between such Indemnitees Indemnitee and the such Indemnifying Party exists in respect of such Indemnitees shall have the right to employ separate counsel claim, and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any an Indemnifying Party elects not to assume responsibility for compromise, settle or defend against a Third-Party Claim (which Claim, or fails to notify an Indemnitee of its election may be made only as provided in this Section 7.3 within 30 days of notice from the event of a good faith dispute that a claim was inappropriately tendered under Indemnitee pursuant to Section 5.2 or 5.3, as the case may be7.3(a), each such Indemnitee may compromise, settle or defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii)Claim.
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claimclaim, each the applicable Indemnitee shall make available to such Indemnifying Party any personnel and or any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) If the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by pursuant to this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each the applicable Indemnitee to each the applicable Indemnifying Party.
(ge) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and and, at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 3 contracts
Sources: Investment Agreement (Hexcel Corp /De/), Agreement (Goldman Sachs Group Inc), Investment Agreement (Ciba Specialty Chemicals Holding Inc /Fi/)
Procedure for Indemnification. (a) If an any Indemnitee shall receive receives notice or otherwise learn of the assertion by a person (including any governmental entity) who is not a party to this Agreement or to any of the Transaction Documents of any claim or of the commencement by any such Person of any action (a “Third-Third Party Claim”) Claim with respect to which an Indemnifying Party may be is obligated under this Agreement to provide indemnification pursuant to this Agreementindemnification, each such Indemnitee shall give each such promptly deliver to the Indemnifying Party a written notice thereof promptly after becoming aware of such Third-Party Claimthereof; provided, however, that the failure of any Indemnitee to give notice as required by provided in this Section 5.5 4.04 shall not relieve each any Indemnifying Party of its obligations under this Article VIV, except to the extent that each such Indemnifying Party is actually prejudiced by such failure to give notice. Such written notice shall describe the Third-such Third Party Claim in reasonable detaildetail and, and if practicable, shall indicate the estimated amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee. Thereafter, such Indemnitee shall deliver to the Indemnifying Party, promptly after the Indemnitee’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitee relating to such Third Party Claim.
(b) An Indemnifying Party may elect to defend or to seek to settle or compromiseParty, at such the Indemnifying Party’s own expense and through counsel chosen by such the Indemnifying Party’s own Party (which counsel shall be reasonably acceptable satisfactory to each the Indemnitee), may elect to defend any Third-Third Party Claim. If the Indemnifying Party elects to defend a Third Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect then, within fifteen Business Days after receiving notice of such Third-Third Party Claim. Within 30 days of the receipt of notice from an Indemnitee Claim or sooner (but in accordance with Section 5.5(ano event less than five Business Days) (or sooner, if the nature of such Third-Third Party Claim so requires), the Indemnifying Party shall notify each the Indemnitee of its election whether intent to assume responsibility for do so. The Indemnitee shall thereupon use commercially reasonable efforts to make available to the Indemnifying Party, at the Indemnifying Party’s expense, such Third-Party Claim (provided that if assistance in support of the prosecution or defense of such litigation as the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each Indemniteemay reasonably request, including without limitation, the right to assert in the name of the Indemnitee such rights, claims, counterclaims or defenses that the Indemnitee would be or would have been permitted to assert in such litigation or in the prosecution of a claim or counterclaim against a Third Party or in defense against such Third Party Claim had the Distribution not occurred. The Indemnifying Party shall be deemed to have elected not to assume responsibility for pay the Indemnitee’s reasonable out-of-pocket expenses incurred in connection with such Third-Party Claim)cooperation consistent with the provisions of this Article IV. Except as provided herein, and each Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Party Claim. After after notice from an Indemnifying Party to each an Indemnitee of its election to assume responsibility for the defense of a Third-Third Party Claim, such the Indemnifying Party shall not be liable to each such the Indemnitee under this Article V IV for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such the Indemnitee in connection with the defense thereof, unless the Indemnitee reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the Indemnitee and the Indemnifying Party may have different, conflicting, or adverse legal positions or interests. If an Indemnifying Party elects not to defend against a Third Party Claim, or fails to notify an Indemnitee of its election as provided in this Section 4.04 within the period of fifteen (or five, if applicable) Business Days described above, the Indemnitee may defend, compromise and settle such Third Party Claim; provided, however, that if no the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees and the Indemnifying Party such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle any such Third-Third Party Claim without the prior written notice to each such consent of the Indemnifying Party, which consent shall have not be unreasonably withheld or delayed.
(c) Notwithstanding the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemniteeforegoing, the Indemnifying Party shall be deemed not, without the prior written consent of the Indemnitee, settle or compromise any Third Party Claim or consent to have elected option (ii)the entry of any judgment which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnitee of a written release from all Liability in respect of such Third Party Claim.
(cd) If an the Indemnifying Party chooses to defend or to seek to compromise any Third-Third Party Claim, each the Indemnitee shall make available to such the Indemnifying Party any personnel and or any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account Upon obtaining knowledge of an any Indemnifiable Loss which does not result from a Third-Third Party Claim Claim, the Indemnitee shall be asserted by promptly give written notice given by an Indemnitee to each applicable the Indemnifying PartyParty specifying the facts constituting the basis for such claim and the amount, to the extent known, of the claim asserted. Each If the Indemnifying Party disputes such claim of indemnification, the Indemnifying Party shall have a period of 30 notify the Indemnitee within thirty days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claimnotice. If each such Indemnifying Party does not so notify each respond within such Indemnitee during such 30thirty-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30thirty-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such party under Article X of this Agreement. If the Indemnifying Party under applicable law or under this Agreement or does not dispute the Indemnitee’s claim of indemnification, the Indemnifying Party shall pay the amount of any other agreement or arrangement between valid claim within thirty days after receipt of notice from the PartiesIndemnitee.
(f) In addition to any adjustments required pursuant to Section 5.4, if If the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each the Indemnitee to each the Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Third Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Third Party Claim against any claimant or plaintiff asserting such Third-Third Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim, including without limitation, permitting the Indemnifying Party to bring suit against such Third Party in the name of the Indemnitee.
Appears in 3 contracts
Sources: Distribution Agreement (Sun Healthcare Group Inc), Distribution Agreement (SHG Services, Inc.), Distribution Agreement (Sabra Health Care REIT, Inc.)
Procedure for Indemnification. The procedure for indemnification shall be as follows:
(a) If an Indemnitee The Party seeking indemnification under this Article VIII (the “Claimant”) shall receive give notice or otherwise learn of to the assertion by a person Party from whom indemnification is sought (including any governmental entitythe “Indemnitor”) who is not a party to this Agreement or to any of the Transaction Documents of any claim or liability that might result in an indemnified Loss (an “Indemnified Claim”), specifying in reasonable detail (i) the factual basis for and circumstances surrounding the Indemnified Claim; and (ii) the amount of the commencement by any such Person potential Loss pursuant to the Indemnified Claim if then known, and including copies of any action material correspondence or written documents relating to the Indemnified Claim. If the Indemnified Claim relates to a Proceeding filed by a third party against Claimant, notice shall be given by Claimant as soon as practical, but in all events within fifteen (a “Third-Party Claim”15) with respect Business Days after Claimant learns of the Proceeding or written notice of the Proceeding is given to which an Indemnifying Party may Claimant. In all other circumstances, notice shall be obligated given by Claimant as soon as practical, but in all events within twenty (20) Business Days after Claimant becomes aware of the facts giving rise to provide indemnification the potential Loss; provided, however, that should the Claimant fail to notify the Indemnitor in the time required above, the Indemnitor shall only be relieved of its obligations pursuant to this AgreementArticle VIII to the extent the Indemnitor is materially prejudiced by such delay or failure to timely give notice of an Indemnified Claim or potential Loss.
(b) The Claimant shall make available to Indemnitor and/or its authorized representatives the information relied upon by the Claimant to substantiate the Indemnified Claim or Loss and shall make available any information or documentation in Claimant’s possession, each custody or control that is or may be helpful in defending or responding to the Indemnified Claim or Loss.
(c) The Indemnitor shall have thirty (30) days after receipt of the indemnification notice referred to in sub-section (a) to notify the Claimant in writing that it elects to conduct and control the defense of any such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after becoming aware of such Third-Party Indemnified Claim; provided, however, that such thirty (30) day period shall be reduced to such shorter period of time set forth in the failure of any Indemnitee to give applicable indemnification notice as required by this Section 5.5 shall not relieve each Indemnifying Party of its obligations under this Article Vif the Indemnified Claim or Loss is based upon a third-party claim requiring a response in fewer than thirty (30) days, except to the extent that each such Indemnifying Party is prejudiced by such failure to give notice. Such notice shall describe the Third-Party Claim but in reasonable detail, and shall indicate the amount no event fewer than ten (estimated if necessary10) of the Indemnifiable Loss that has been or may be sustained by each such Indemniteedays.
(bd) An Indemnifying Party may elect If the Indemnitor does not advise the Claimant of its intent to defend conduct and control the defense of the Indemnified Claim or Proceeding within the time period specified above, the Claimant shall have the right to seek to settle defend, contest, settle, or compromise, at compromise such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel reasonably acceptable to each Indemnitee, any Third-Party Claim, provided that Indemnified Claim or Proceeding. If the Indemnifying Party must confirm in writing Indemnitor properly advises the Claimant that it agrees that each Indemnitee is entitled will conduct and control the Indemnified Claim or Proceeding, the Indemnitor shall have the right to indemnification hereunder in respect undertake, conduct, defend, and control, through counsel of such Third-Party Claim. Within 30 days its own choosing and at its sole expense, the conduct, defense, and settlement of the receipt of notice from an Indemnitee in accordance with Section 5.5(a) (Indemnified Claim or sooner, if the nature of such Third-Party Claim so requires), the Indemnifying Party shall notify each Indemnitee of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim)Proceeding, and each Indemnitee the Claimant shall cooperate in with the defense or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each Indemnitee of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee Indemnitor in connection with the defense thereoftherewith; provided, however, that if that: (i) the defendants in Indemnitor shall not consent to the imposition of any such claim include both injunction against the Indemnifying Party and one or more Indemnitees and Claimant without the prior written consent of the Claimant, which consent shall not be unreasonably withheld; (ii) the Indemnitor shall permit the Claimant to participate in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees and conduct or settlement through counsel chosen by the Indemnifying Party such Indemnitees shall have Claimant, but the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid borne by each the Claimant; (iii) upon a final determination of Proceeding, the Indemnitor shall promptly reimburse the Claimant for the full amount of any indemnified Loss or indemnified portion of any Loss resulting from the Indemnified Claim or Proceeding and all reasonable expenses related to such Indemnifying Party. If any Indemnifying Party elects not to assume responsibility indemnified Loss incurred by the Claimant, except (A) fees and expenses of counsel for a Third-Party Claim (which election may be made only the Claimant in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 Indemnitor has conducted or 5.3, as controlled the case may be), each such Indemnitee may defend or Proceeding and (subject to the following sentenceB) seek to compromise or settle such Third-Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement any Loss not indemnifiable by Indemnitor; and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay no Indemnitor may, without the settlement. In prior written consent of the event such Indemnifying Party makes no response to such written notice from an IndemniteeClaimant, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend settle or to seek to compromise any Third-Party Claimcompromise, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 consent to the contraryentry of any judgment in connection with, an Indemnifying Party shall not settle or compromise any Third-Party Claim Proceeding with respect to the claim described in the indemnification notice unless (iA) such settlement or compromise contemplates as an unconditional term thereof involves only the giving by such claimant or plaintiff to each Indemnitee payment of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and money; (B) there is no finding or admission of liability, any violation of any Law or any violation of the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result rights of any Person by the Claimant; and (C) the Indemnitor obtains an unconditional release of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any Claimant from all Indemnified Claims or potential Loss arising out of the claim on account described in the indemnification notice and any Indemnified Claim or Proceeding related thereto. If the Claimant is controlling the defense of an Indemnifiable Loss which does Indemnified Claim or Proceeding pursuant to this Section 8.3(d), then it shall not result from a Third-Party Claim shall be asserted by agree to any settlement without the written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee consent of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does Indemnitor (which consent shall not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period unreasonably withheld or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Partiesdelayed).
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 3 contracts
Sources: Contribution and Distribution Agreement (Mediaco Holding Inc.), Contribution and Distribution Agreement (Mediaco Holding Inc.), Contribution and Distribution Agreement (Emmis Communications Corp)
Procedure for Indemnification. (a) If an Indemnitee indemnitee shall receive notice or otherwise learn of the assertion by a person (including including, without limitation, any governmental entity) who is not a party to this Agreement agreement or to any of the Transaction Documents Ancillary Agreements of any claim or of the commencement by any such Person person of any action (a “Third-Party Claim”"third party claim") with respect to which an Indemnifying Party indemnifying party may be obligated to provide indemnification pursuant to this Agreementagreement, each such Indemnitee indemnitee shall give each such Indemnifying Party indemnifying party written notice thereof of it promptly after becoming aware of such Third-Party Claimthird party claim; provided, however, that the failure of any Indemnitee indemnitee to give notice as required by provided in this Section 5.5 4.04 shall not relieve each Indemnifying Party the related indemnifying party of its obligations under this Article VIV, except to the extent that each such Indemnifying Party indemnifying party is prejudiced by such failure to give notice. Such notice shall describe the Third-Party Claim third party claim in reasonable detaildetail and, and if ascertainable, shall indicate the amount (estimated if necessary) of the Indemnifiable Loss liability that has been or may be sustained by each such Indemniteeindemnitee.
(b) An Indemnifying Party indemnifying party may elect to defend or to seek to settle or compromise, at such Indemnifying Party’s indemnifying party's own expense and by such Indemnifying Party’s indemnifying party's own counsel reasonably acceptable to each Indemniteecounsel, any Third-Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect of such Third-Party Claimthird party claim. Within 30 days of the receipt of notice from an Indemnitee in accordance with Section 5.5(a4.04(a) (or sooner, if the nature of such Third-Party Claim so requiresthird party claim requires it), the Indemnifying Party indemnifying party shall notify each Indemnitee of its election whether to assume responsibility for such Third-Party Claim (provided that the related indemnitee if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim), and each Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each Indemnitee of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees and the Indemnifying Party such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any Indemnifying Party indemnifying party elects not to assume responsibility for a Third-Party Claim (defend or to seek to settle or compromise such third party claim, which election may be made only in the event of a good faith dispute assertion by the indemnifying party that a claim was inappropriately tendered under Section 5.2 4.01 or 5.3, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii)4.
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 3 contracts
Sources: Separation Agreement (Card Activation Technologies Inc), Split Off Agreement (Gift Liquidators Inc), Separation Agreement (Card Activation Technologies Inc)
Procedure for Indemnification. (a) If an Indemnitee shall receive notice or otherwise learn of the assertion by a person (including any governmental entity) who is not a party to this Separation Agreement or to any of the Transaction Documents of any claim or of the commencement by any such Person person of any action Action (a “Third-Third Party Claim”) with respect to which an Indemnifying Party may be obligated to provide indemnification pursuant to this Agreementunder Section 5.1 or Section 5.2, each such Indemnitee shall give each such Indemnifying Party written prompt notice thereof promptly after becoming aware of such Third-Third Party Claim; provided, however, that the failure of any Indemnitee to give notice as required by provided in this Section 5.5 5.4 shall not relieve each the related Indemnifying Party of its obligations under this Article V, except to the extent that each such Indemnifying Party is actually and materially prejudiced by such failure to give notice. Such notice shall describe the Third-Third Party Claim in reasonable detail, and and, if practicable, shall indicate the estimated amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained or asserted by each such Indemnitee.
(b) An Indemnifying If an Indemnitee gives notice of a Third Party may elect Claim to defend or to seek to settle or compromise, at such an Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel reasonably acceptable to each Indemnitee, any Third-Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect of such Third-Party Claim. Within 30 days of the receipt of notice from an Indemnitee in accordance with Section 5.5(a) (or sooner, if the nature of such Third-Party Claim so requires), the Indemnifying Party shall notify each Indemnitee of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within have 30 days after receipt of notice to elect, at its option, to take responsibility for resolving, and assume and control the defense of, at its own expense and by its own counsel, any such notice from each Indemnitee, Third Party Claim and shall be entitled to assert any and all defenses available to the Indemnitee to the fullest extent permitted by Law. If the Indemnifying Party shall be deemed undertake to have elected not to assume responsibility for defend and resolve any such Third-Third Party Claim), and each Indemnitee it shall cooperate in promptly notify the defense or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each Indemnitee of its election intention to assume responsibility for a Third-Party Claimdo so, such Indemnifying Party shall not be liable and the Indemnitee agrees to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance cooperate as reasonably requested by the Indemnifying Party) subsequently incurred by each Party and its counsel in the resolution of, or defense against, any such Indemnitee in connection with the defense thereofThird Party Claim; provided, however, that if the defendants in any such claim include both the Indemnifying Party shall not admit any liability with respect to such Third Party Claim without the prior written consent of the Indemnitee, and one shall not resolve, settle, compromise or more discharge any such Third Party Claim without the prior written consent of the Indemnitee (which consent will not be unreasonably withheld or delayed) unless the relief consists solely of the payment of money and includes a provision whereby the plaintiff or claimant in the matter releases the Indemnitees and in from all liability with respect thereto. Notwithstanding the foregoing, the Indemnitee shall have the right to defend (but not admit liability, compromise, settle or otherwise resolve such Indemnitees’ reasonable judgment there exists a conflict Third Party Claim without the prior written consent of interest between such Indemnitees the Indemnifying Party) any Third Party Claim as to itself by its own separate counsel, and the Indemnifying Party shall pay the reasonable fees, costs and expenses of such Indemnitees separate counsel, as incurred, if the Indemnitee shall have determined in good faith that an actual or potential conflict of interest makes representation by the same counsel or the counsel selected by the Indemnifying Party inappropriate. Further, the Indemnitee shall have the right to employ separate counsel and to participate in that event the reasonable defense of any Third Party Claim (though such separate counsel shall not appear of record), at the expense of the Indemnitee (unless the Indemnifying Party agrees to pay the fees and expenses of such separate counsel). In any event, the Indemnitee and Indemnifying Party and their counsel (but not more than one separate counsel reasonably satisfactory shall cooperate in the defense of any Third Party Claim and keep such persons informed of all developments relating to any such Third Party Claim, and provide copies of all relevant correspondence and documentation relating thereto consistent with applicable rules of privilege and legal ethics. All costs and expenses incurred in connection with the Indemnifying Party) Indemnitee’s cooperation shall be paid by each such Indemnifying Party. If any Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim without prior written notice to each such Indemnifying Party, which as incurred. If the Indemnifying Party receiving a notice of Third Party Claim does not elect timely to take responsibility for resolving, and defend, such Third Party Claim or does not defend such Third Party Claim in good faith, the Indemnitee shall have the option within fifteen days following right, in addition to any other right or remedy it may have hereunder, at the receipt of Indemnifying Party’s expense, to defend such notice Third Party Claim; provided, however, that (i1) the Indemnitee shall not have any obligation to reject participate in the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claimdefense of, or defend, any such Third Party Claim; (ii2) to reject the settlement and continue to refrain from Indemnitee’s defense of or participation in the defense of any such claim shall not in any way diminish or lessen the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness obligations of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the Indemnifying Party shall be deemed to have elected option under this Article V; and (ii).
(c3) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each the Indemnitee shall make available to not resolve, settle, compromise or discharge any such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Third Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof without the giving by such claimant or plaintiff to each Indemnitee of a prior written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee consent of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 3 contracts
Sources: Purchase and Separation Agreement (Albertsons Inc /De/), Purchase and Separation Agreement (New Aloha CORP), Purchase and Separation Agreement (Supervalu Inc)
Procedure for Indemnification. (a) If an Indemnitee a Purchaser Indemnified Party or a Sellers Indemnified Person (such Person being referred to as the "Indemnitee") shall receive notice or otherwise learn of the assertion by a person (including any governmental entity) Person who is not a party to this Agreement or to any of the Transaction Documents of any claim or of the commencement by any such Person of any action (a “Third-Party "Claim”") with respect to which an the other party (the "Indemnifying Party Party") may be obligated to provide indemnification pursuant to this Agreementindemnification, each such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after becoming aware of such Third-Party Claim; provided, however, that the failure of any Indemnitee to give notice as required by provided in this Section 5.5 7.3 shall not relieve each the applicable Indemnifying Party of its obligations under this Article VVII, except to the extent that each such Indemnifying Party is prejudiced by such failure to give notice; provided, further, that the applicable Indemnifying Party shall have no obligations under this Article VII unless such written notice is received by the Indemnifying Party within the survival periods set forth in Section 7.1. Such notice shall describe the Third-Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each or is claimed against such Indemnitee. Such notice shall be a condition precedent to any liability of any Indemnifying Party for any Claim under the provisions for indemnification contained in this Agreement.
(b) An Indemnifying Party may elect to defend or to seek to compromise, settle or compromisedefend, at such Indemnifying Party’s 's own expense and by such Indemnifying Party’s 's own counsel reasonably acceptable to each Indemniteecounsel, any Third-Party Claim; provided, provided however, that the Indemnifying Party must confirm in writing that shall not compromise, settle or defend a Claim without the consent of the Indemnitee (which consent shall not be unreasonably withheld). If an Indemnifying Party elects to compromise, settle or defend a Claim, it agrees that each Indemnitee is entitled to indemnification hereunder in respect of such Third-Party Claim. Within shall, within 30 days of the receipt of notice from an Indemnitee in accordance with pursuant to Section 5.5(a7.3(a) (or sooner, if the nature of such Third-Party Claim so requires), notify the Indemnifying Party shall notify each applicable Indemnitee of its election whether intent to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim)do so, and each such Indemnitee shall cooperate in the defense compromise or settlement of, or compromise of defense against, such Third-Party Claim. After notice from an Indemnifying Party to each an Indemnitee of its election to assume responsibility for the defense of a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V VII for any legal or other expenses subsequently incurred by such Indemnitee in connection with the defense thereof (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereofIndemnitee); provided, however, that such Indemnitee shall have the right to employ one separate counsel reasonably satisfactory to the Indemnifying Party to represent such Indemnitee if the defendants in any such claim include included both the Indemnifying Party and one or more Indemnitees and the Indemnitee and, in such Indemnitees’ Indemnitee's reasonable judgment there exists judgment, a conflict of interest between such Indemnitees Indemnitee and the such Indemnifying Party exists in respect of such Indemnitees shall have the right to employ separate counsel claim, and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any an Indemnifying Party elects not to assume responsibility for compromise, settle or defend against a Third-Party Claim (which Claim, or fails to notify an Indemnitee of its election may be made only as provided in this Section 7.3 within 30 days of notice from the event of a good faith dispute that a claim was inappropriately tendered under Indemnitee pursuant to Section 5.2 or 5.3, as the case may be7.3(a), each such Indemnitee may compromise, settle or defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii)Claim.
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claimclaim, each the applicable Indemnitee shall make available to such Indemnifying Party any personnel and or any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) If the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by pursuant to this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each the applicable Indemnitee to each the applicable Indemnifying Party.
(ge) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and and, at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 3 contracts
Sources: Investment Agreement (Hexcel Corp /De/), Stock Purchase Agreement (Goldman Sachs Group Inc), Stock Purchase Agreement (Ciba Specialty Chemicals Holding Inc /Fi/)
Procedure for Indemnification. (a) If an Indemnitee shall receive notice or otherwise learn of the assertion by a person (including any governmental entity) who is not a party Party to this Agreement or to any of the Transaction Documents of any claim or of the commencement by any such Person of any action (a “Third-Party Claim”) with respect to which an Indemnifying Party may be obligated to provide indemnification pursuant to this Agreement, each such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after becoming aware of such Third-Party Claim; provided, however, that the failure of any Indemnitee to give notice as required by this Section 5.5 6.6 shall not relieve each the Indemnifying Party of its obligations under this Article V, except to the extent that each such Indemnifying Party is prejudiced by such failure to give notice. Such notice shall describe the Third-Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
(b) An Indemnifying Party may elect to defend or to seek to settle or compromise, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel reasonably acceptable to each the Indemnitee, any Third-Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each the Indemnitee is entitled to indemnification hereunder in respect of such Third-Party Claim. Within 30 days of the receipt of notice from an Indemnitee in accordance with Section 5.5(a6.6(a) (or sooner, if the nature of such Third-Party Claim so requires), the Indemnifying Party shall notify each the Indemnitee of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each the Indemnitee of its election within 30 thirty (30) days after receipt of such notice from each the Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim), and each such Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each an Indemnitee of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V IV for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees and the Indemnifying Party such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any an Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 6.2 or 5.36.3, as the case may be), each ) such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim without prior written notice to each such the Indemnifying Party, which shall have the option within fifteen (15) days following the receipt of such notice (i) to reject disapprove the settlement and assume all past and future responsibility for the claim, including reimbursing each the Indemnitee for prior expenditures in connection with the claim, or (ii) to reject disapprove the settlement and continue to refrain from participation in the defense of the claim, in which event each such the Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each the Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such the Indemnifying Party’s right to contest each the Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such the Indemnifying Party makes no response to such written notice from an the Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each the Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such the Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 6.6 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each the Indemnitee of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any the Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser less of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an the Indemnitee to each the applicable Indemnifying Party. Each such Such Indemnifying Party shall have a period of 30 thirty (30) days after the receipt of such notice within which to notify each applicable the Indemnitee of the Indemnifying Party’s response to the claim. If each such the Indemnifying Party does not so notify each such the Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Partiesparties.
(f) In addition to any adjustments required pursuant to Section 5.46.5, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each the Indemnitee to each the Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 2 contracts
Sources: Separation and Distribution Agreement (MachTen, Inc.), Separation and Distribution Agreement (MachTen, Inc.)
Procedure for Indemnification. (a) If if a party entitled to be indemnified under this Agreement (an Indemnitee shall receive "Indemnitee") receives notice or otherwise learn of the assertion by an unaffiliated third party (a person (including any governmental entity"Third Party") who is not a party to this Agreement or to any of the Transaction Documents of any claim or potential liability or of the commencement by any such Person person of any action or proceeding (a “Third-"Third Party Claim”") with respect to which another party hereto (an "Indemnifying Party may be Party") is obligated to provide indemnification pursuant to this Agreementindemnification, each such the Indemnitee shall give each such the Indemnifying Party written prompt notice thereof promptly after becoming aware of such Third-Third Party Claim; provided, however, that the failure of any Indemnitee to give notice as required by this Section 5.5 shall not relieve each Indemnifying Party of its obligations under this Article V, except to the extent that each such Indemnifying Party is prejudiced by such failure to give notice. Such notice shall describe the Third-Third Party Claim in reasonable detail, detail and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each the Indemnitee. Such notice shall be a condition precedent to any liability of the Indemnifying Party for any Third Party Claim under the provisions for indemnification contained in this Agreement; provided, however, that the failure of the Indemnitee to give prompt notice to the Indemnifying Party of such Third Party Claim shall adversely affect the Indemnitee's rights to indemnification hereunder solely to the extent that such failure prejudices the Indemnifying Party in the defense of such Third Party Claim.
(b) An The Indemnifying Party may elect to defend compromise or to seek to settle or compromisedefend, at such Indemnifying Party’s 's own expense and by such Indemnifying Party’s 's own counsel reasonably acceptable to each Indemniteecounsel, any Third-Third Party Claim. If the Indemnifying Party elects to compromise or defend such Third Party Claim, provided that it shall, within 30 days after receiving notice of the Third Party Claim, notify the Indemnitee of its intent to do so, and the Indemnitee shall cooperate, at the expense of the Indemnifying Party, in the compromise of, or defense against, such Third Party Claim. If the Indemnifying Party must confirm in writing that it agrees that each elects not to compromise or defend against the Third Party Claim, or fails to notify the Indemnitee is entitled to indemnification hereunder in respect of its election as herein provided, or otherwise abandons the defense of such Third-Third Party Claim, (i) the Indemnitee may pay (without prejudice of any of its rights as against the Indemnifying Party), compromise or defend such Third Party Claim and (ii) the costs and expenses of the Indemnitee incurred in connection therewith shall be indemnifiable by the Indemnifying Party pursuant to the terms of this Agreement.
(c) In addition, in connection with any Third Party Claim in which the Indemnitee shall reasonably conclude, based upon an opinion of its counsel, that (i) there is a conflict of interest between the Indemnifying Party and the Indemnitee in the conduct of the defense of such Third Party Claim or (ii) there are specific defenses available to the Indemnitee which are different from or additional to those available to the Indemnifying Party and which could be materially adverse to the Indemnifying Party, then the Indemnitee shall have the right to retain separate counsel in connection with such Third Party Claim. Within 30 days of the receipt of notice from In such an Indemnitee in accordance with Section 5.5(a) (or sooner, if the nature of such Third-Party Claim so requires)event, the Indemnifying Party shall notify pay the reasonable fees and disbursements of counsel to each Indemnitee of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each and the Indemnitee.
(d) Notwithstanding the foregoing, neither the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim), and each nor the Indemnitee shall cooperate in the defense or settlement may settle or compromise any claim (unless the sole relief payable to a Third Party in respect of such Third-Third Party Claim. After notice from an Indemnifying Party to each Indemnitee of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved Claim is monetary damages that are paid in advance full by the Indemnifying Partyparty settling or compromising such claim) subsequently incurred by each such Indemnitee in connection with over the defense thereof; objection of the other, provided, however, that if consent to settlement or compromise shall not be unreasonably withheld.
(e) In any event, except as otherwise provided herein, the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees Indemnitee and the Indemnifying Party such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by may each such Indemnifying Party. If any Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3participate, as the case may be)at its own expense, each such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Third Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii)Claim.
(cf) If an the Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claimclaim, each the Indemnitee shall make available to such the Indemnifying Party any personnel and or any books, records or other documents within its control or which it otherwise has the ability to make available that are reasonably necessary or appropriate for such defense, within subject to the reasonable discretion receipt of each such Indemnifying Partyappropriate confidentiality agreements.
(dg) Notwithstanding anything else to the contrary stated hereinabove in this Section 5.5 section, in the event prompt action is required with respect to the contrarydefense of a Third Party Claim, an the Indemnitee shall, subject to the terms and conditions of this Article, have the right to assume the defense of such Third Party Claim; provided, however, that in the event that the Indemnifying Party subsequently elects to assume the defense of such Third Party Claim, then the provisions set forth hereinabove shall not be applicable and the Indemnifying Party shall, subject to the terms and conditions of this Article, reimburse the Indemnitee for any costs and expenses incurred by the Indemnitee prior to the date the Indemnifying Party assumes control of such Third Party Claim.
(h) Notwithstanding the foregoing, if an offer of settlement or compromise is received by or communicated to the Indemnifying Party with respect to a Third Party Claim and the Indemnifying Party notifies the Indemnitee in writing of the Indemnifying Party's willingness to settle or compromise any Third-such Third Party Claim unless (i) on the basis set forth in such settlement or compromise contemplates as an unconditional term thereof notice and the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such the Indemnitee may continue to contest such Third-Third Party Claim Claim, free of any participation by such the Indemnifying Party, at each such the Indemnitee’s 's sole expense. In such event, the The obligation of such the Indemnifying Party to each such the Indemnitee with respect to such Third-Third Party Claim shall be equal to the lesser of (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any the offer of settlement or compromise which each such the Indemnitee declined to accept plus the costs and expenses of the Indemnitee prior to the date the Indemnifying Party notifies the Indemnitee of the Indemnifying Party's willingness to settle or compromise such Third Party Claim or (Bii) the actual out-of-pocket amount each such the Indemnitee is obligated to pay subsequent to such date as a result of each such the Indemnitee’s 's continuing to pursue contest such ThirdThird Party Claim including costs and expenses with respect thereto; and the Indemnifying Party shall be entitled to recover (by set-off or otherwise) from the Indemnitee any additional expenses incurred by the Indemnifying Party as a result of the Indemnitee's decision to continue to contest such Third Party Claim.
(ei) Any claim on account of an Indemnifiable a Loss which does not result from involve a Third-Third Party Claim shall be asserted by a written notice given by an Indemnitee the party claiming indemnity to each applicable Indemnifying Partythe party from which indemnity is claimed. Each The recipient of such Indemnifying Party notice shall have a period of 30 for 60 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claimrespond thereto. If each such Indemnifying Party recipient does not so notify each respond within such Indemnitee during such 3060-day period, such Indemnifying Party recipient shall be deemed to have refused to accept accepted responsibility to make payment, subject to the provisions hereof, and shall have no further right to contest the validity of such claim. If each such Indemnifying Party the recipient does not respond within such 3060-day period or and rejects such claim in whole or in part, each such Indemnitee the party claiming indemnity shall be free to pursue such remedies as may be available to such Party under party by applicable law or under this Agreement or any other agreement or arrangement between the Partieslaw.
(fj) In addition to any adjustments required pursuant to Section 5.4, if If the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by of indemnification pursuant to this Agreement, be reduced by recovery, settlement or otherwisereceipt of insurance proceeds by the Indemnitee in respect of such Loss, the amount of such reduction, reduction less any expenses incurred in connection therewith, therewith shall promptly be repaid by each the Indemnitee to each the Indemnifying Party.
(gk) In Notwithstanding anything to the event of payment by an Indemnifying Party contrary contained in this Agreement, no claim shall be made against Seller for indemnification under Section 12.1(a) with respect to any Indemnitee Loss which any of Purchaser's Indemnified Parties may suffer, incur or sustain unless the aggregate of all such Losses described in connection Section l2.l(a) shall exceed $150,000, and Seller shall only be required to pay or be liable for any such Losses described in Section l2.l(a) to the extent that their aggregate amount exceeds $150,000, and then only with any Third-Party Claimrespect to Losses incurred in excess of such amount, such Indemnifying Party provided, however, that the $150,000 limitation contained in this Section 12.3(k) shall not apply to, and Purchaser's Indemnified Parties shall be subrogated entitled to dollar-for-dollar recovery with respect to, Losses suffered, incurred or sustained which arise out of, result from or are attributable to breaches of the representations contained in Sections 3.5 and 3.12 hereof.
(l) Notwithstanding anything to the contrary contained in this Agreement, no claim shall stand be made against Purchaser for indemnification under Section 12.2(a) with respect to any Loss which any of Seller's Indemnified Parties may suffer, incur or sustain unless the aggregate of all such Losses described in Section 12.2(a) shall exceed $150,000, and Purchaser shall only be required to pay or be liable for any such Losses described in Section 12.2(a) to the place extent that their aggregate amount exceeds $150,000, and then only with respect to Losses incurred in excess of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claimamount.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (First Nationwide Parent Holdings Inc), Purchase and Sale Agreement (First Nationwide Holdings Inc)
Procedure for Indemnification. (a) If an Indemnitee shall receive notice or otherwise learn of In the assertion by a person (including any governmental entity) who is not event a party intends to this Agreement seek indemnification pursuant to the provisions of Sections 11.1 or 11.2 hereof (the "Indemnified Party"), the Indemnified Party shall promptly give notice hereunder to any of the Transaction Documents other party (the "Indemnifying Party") after obtaining written notice of any claim or the service of a summons or other initial legal process in any action instituted against the Indemnified Party as to which recovery may be sought against the Indemnifying Party because of the commencement by indemnification provided for in Section 11.1 or 11.2 hereof, and, if such indemnity shall arise from the claim of a third party, the Indemnified Party shall permit the Indemnifying Party to assume the defense of any such Person of claim and any action (a “Third-Party Claim”) with respect to which an Indemnifying Party may be obligated to provide indemnification pursuant to this Agreement, each litigation resulting from such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after becoming aware of such Third-Party Claimclaim; provided, however, that the Indemnified Party shall not be required to permit such an assumption of the defense of any claim or litigation which, if not first paid, discharged or otherwise complied with, would result in an interruption or disruption of the business of the Indemnified Party or any material part thereof. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of any Indemnitee the Indemnified Party to give such notice as required (or by this Section 5.5 shall not relieve each Indemnifying delay by the Indemnified Party of its obligations under this Article Vin giving such notice) unless, except and then only to the extent that each such Indemnifying Party is prejudiced by such failure to give notice. Such notice shall describe that, the Third-Party Claim in reasonable detail, rights and shall indicate the amount (estimated if necessary) remedies of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
(b) An Indemnifying Party may elect to defend or to seek to settle or compromise, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel reasonably acceptable to each Indemnitee, any Third-Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect of such Third-Party Claim. Within 30 days of the receipt of notice from an Indemnitee in accordance with Section 5.5(a) (or sooner, if the nature of such Third-Party Claim so requires), the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by the Indemnifying Party to notify each Indemnitee the Indemnified Party of its election whether to assume responsibility for defend any such Third-Party Claim claim or action by a third party within ten (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 10) days after receipt of such notice from each Indemnitee, thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to have elected not defend such claim or action. If the Indemnifying Party assumes the defense of such claim or litigation resulting therefrom, the obligations of the Indemnifying Party hereunder as to assume responsibility for such Third-Party Claim), and each Indemnitee claim or litigation shall cooperate include taking all steps necessary in the defense or settlement or compromise of such Third-claim or litigation and holding the Indemnified Party Claim. After notice harmless from an and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party to each Indemnitee of its election to assume responsibility for a Third-Party Claim, or any judgment entered in connection with such claim or litigation. The Indemnifying Party shall not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; providednot, however, that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees and the Indemnifying Party such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the claim, in which event each such Indemnifying Party shall have no further right to contest merits without costs) except with the amount or reasonableness written consent of the Indemnified Party or enter into any settlement if each Indemnitee elects to proceed therewith, or (iii) to approve except with the amount written consent of the settlement, reserving each such Indemnifying Indemnified Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall does not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates include as an unconditional term thereof the giving by such the claimant or the plaintiff to each Indemnitee of the Indemnified Party a written release from all liability in respect of to such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents theretoclaim or litigation. In the event any Indemnitee shall notify If the Indemnifying Party in writing that such Indemnitee declines to accept does not assume the defense of any such settlement claim by a third party or compromise, each such Indemnitee may continue to contest such Third-Party Claim free litigation resulting therefrom after receipt of any participation by such Indemnifying notice from the Indemnified Party, at each the Indemnified Party may defend against such Indemnitee’s sole expense. In claim or litigation in such eventmanner as it deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party's estimate of the cost (including attorneys' fees) of defending the same, the obligation Indemnified Party may settle such claim or litigation on such terms as it may deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all costs (including attorneys' fees), expenses and damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation, or if any such claim or litigation is not so settled, the Indemnifying Party to each such Indemnitee with respect to such Third-shall promptly reimburse the Indemnified Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) for the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition judgment rendered with respect to any adjustments required pursuant to Section 5.4claim by a third party in such litigation and for all costs (including attorneys' fees), if expenses and damage incurred by the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Indemnified Party to any Indemnitee in connection with any Third-Party Claimthe defense against such claim or litigation, such Indemnifying Party shall be subrogated to and shall stand in whether or not resulting from, arising out of, or incurred with respect to, the place act of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claimthird party.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Intercel Inc/De), Asset Purchase Agreement (Powertel Inc /De/)
Procedure for Indemnification. (a) If an Indemnitee shall receive notice or otherwise learn of the assertion by a person (including any governmental entity) who is not a party to this Agreement or to any of the Transaction Documents of any claim or of the commencement by any such Person person of any action Action (a “Third-Third Party Claim”) with respect to which an Indemnifying Party may be obligated to provide indemnification pursuant to this Agreementunder Section 5.1 or Section 5.2, each such Indemnitee shall give each such Indemnifying Party written prompt notice thereof promptly after becoming aware of such Third-Third Party Claim; provided, however, that the failure of any Indemnitee to give notice as required by provided in this Section 5.5 5.4 shall not relieve each the related Indemnifying Party of its obligations under this Article V, except to the extent that each such Indemnifying Party is actually prejudiced by such failure to give notice. Such notice shall describe the Third-Third Party Claim in reasonable detail, and and, if practicable, shall indicate the estimated amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained or asserted by each such Indemnitee.
(b) An Indemnifying If an Indemnitee gives notice of a Third Party may elect Claim to defend or to seek to settle or compromise, at such an Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel reasonably acceptable to each Indemnitee, any Third-Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect of such Third-Party Claim. Within 30 days of the receipt of notice from an Indemnitee in accordance with Section 5.5(a) (or sooner, if the nature of such Third-Party Claim so requires), the Indemnifying Party shall notify each Indemnitee of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within have 30 days after receipt of notice to elect, at its option, to take responsibility for resolving, and assume and control the defense of, at its own expense and by its own counsel, any such notice from each Indemnitee, Third Party Claim and shall be entitled to assert any and all defenses available to the Indemnitee to the fullest extent permitted by Law. If the Indemnifying Party shall be deemed undertake to have elected not to assume responsibility for defend and resolve any such Third-Third Party Claim), and each Indemnitee it shall cooperate in promptly notify the defense or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each Indemnitee of its election intention to assume responsibility for a Third-Party Claimdo so, such Indemnifying Party shall not be liable and the Indemnitee agrees to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance cooperate as reasonably requested by the Indemnifying Party) subsequently incurred by each Party and its counsel in the resolution of, or defense against, any such Indemnitee in connection with the defense thereofThird Party Claim; provided, however, that if the defendants in any such claim include both the Indemnifying Party shall not admit any liability with respect to such Third Party Claim without the prior written consent of the Indemnitee, and one shall not resolve, settle, compromise or more discharge any such Third Party Claim without the prior written consent of the Indemnitee (which consent will not be unreasonably withheld or delayed) unless the relief consists solely of the payment of money and includes a provision whereby the plaintiff or claimant in the matter releases the Indemnitees and in from all liability with respect thereto. Notwithstanding the foregoing, the Indemnitee shall have the right to defend (but not admit liability, compromise, settle or otherwise resolve such Indemnitees’ reasonable judgment there exists a conflict Third Party Claim without the prior written consent of interest between such Indemnitees the Indemnifying Party) any Third Party Claim as to itself by its own separate counsel, and the Indemnifying Party shall pay the reasonable fees, costs and expenses of such Indemnitees separate counsel, as incurred, if the Indemnitee shall have determined in good faith that an actual or potential conflict of interest makes representation by the same counsel or the counsel selected by the Indemnifying Party inappropriate. Further, the Indemnitee shall have the right to employ separate counsel and to participate in that event the reasonable defense of any Third Party Claim (though such separate counsel shall not appear of record), at the expense of the Indemnitee (unless the Indemnifying Party agrees to pay the fees and expenses of such separate counsel). In any event, the Indemnitee and Indemnifying Party and their counsel (but not more than one separate counsel reasonably satisfactory shall cooperate in the defense of any Third Party Claim and keep such persons informed of all developments relating to any such Third Party Claim, and provide copies of all relevant correspondence and documentation relating thereto consistent with applicable rules of privilege and legal ethics. All costs and expenses incurred in connection with the Indemnifying Party) Indemnitee’s cooperation shall be paid by each such Indemnifying Party. If any Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim without prior written notice to each such Indemnifying Party, which as incurred. If the Indemnifying Party receiving a notice of Third Party Claim does not elect timely to take responsibility for resolving, and defend, such Third Party Claim or does not defend such Third Party Claim in good faith, the Indemnitee shall have the option within fifteen days following right, in addition to any other right or remedy it may have hereunder, at the receipt of Indemnifying Party’s expense, to defend such notice Third Party Claim; provided, however, that (i) the Indemnitee shall not have any obligation to reject participate in the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claimdefense of, or defend, any such Third Party Claim; (ii) to reject the settlement and continue to refrain from Indemnitee’s defense of or participation in the defense of any such claim shall not in any way diminish or lessen the claim, in which event each such obligations of the Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or under this Article V; and (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to not resolve, settle, compromise or discharge any such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Third Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof without the giving by such claimant or plaintiff to each Indemnitee of a prior written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee consent of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 2 contracts
Sources: Transaction Agreement (Nasdaq Stock Market Inc), Transaction Agreement (Instinet Group Inc)
Procedure for Indemnification. (a) If an any Indemnitee shall receive receives notice or otherwise learn of the assertion by a person (including any governmental entity) who is not a party to this Agreement or to any of the Transaction Documents of any claim or of the commencement by any such Person of any action (a “Third-Party Claim”) Claim with respect to which an Indemnifying Party may be is obligated under this Separation Agreement to provide indemnification pursuant to this Agreementindemnification, each such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after becoming aware of such Third-Party Claim; provided, however, that the failure of any Indemnitee to give notice as required by provided in this Section 5.5 3.2 shall not relieve each any Indemnifying Party of its obligations under this Article V3, except to the extent that each such Indemnifying Party is actually prejudiced by such failure to give notice. Such notice shall describe the such Third-Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
(b) An Indemnifying Party may elect to defend or to seek to settle or compromiseParty, at such Indemnifying Party’s 's own expense and through counsel chosen by such Indemnifying Party’s own Party (which counsel shall be reasonably acceptable satisfactory to each the Indemnitee), may elect to defend any Third-Party Claim, provided that the . If an Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled elects to indemnification hereunder in respect defend a Third-Party Claim, then, within ten (10) Business Days after receiving notice of such Third-Party Claim. Within 30 days of the receipt of notice from an Indemnitee in accordance with Section 5.5(a) Claim (or sooner, if the nature of such Third-Party Claim so requires), the such Indemnifying Party shall notify each the Indemnitee of its election whether intent to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim)do so, and each such Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each an Indemnitee of its election to assume responsibility for the defense of a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V 3 for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, that if such Indemnitee shall have the defendants in any right to employ one law firm as counsel to represent such claim include both Indemnitee (which firm shall be reasonably acceptable to the Indemnifying Party and one or more Indemnitees and Party) if, in such Indemnitees’ Indemnitee's reasonable judgment there exists judgment, either a conflict of interest between such Indemnitees Indemnitee and the such Indemnifying Party exists in respect of such Indemnitees shall have the right claim or there may be defenses available to employ separate counsel such Indemnitee which are different from or in addition to those available to such Indemnifying Party, and in that event (i) the reasonable fees and expenses of such separate counsel shall be paid by such Indemnifying Party (but it being understood, however, that the Indemnifying Party shall not be liable for the expenses of more than one separate counsel reasonably satisfactory (in addition to the Indemnifying Partylocal counsel) shall be paid by with respect to any Third-Party Claim (even if against multiple Indemnitees)) and (ii) each of such Indemnifying PartyParty and such Indemnitee shall have the right to conduct its own defense in respect of such claim. If any an Indemnifying Party elects not to assume responsibility for defend against a Third-Party Claim Claim, or fails to notify an Indemnitee of its election as provided in this Section 3.2 within the period of ten (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.310) Business Days described above, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to defend, compromise and settle such Third-Party Claim; provided, however, that no such Indemnitee may compromise or settle any such Third-Party Claim without the prior written notice to each such consent of the Indemnifying Party, which consent shall have not be withheld unreasonably. Notwithstanding the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemniteeforegoing, the Indemnifying Party shall be deemed to have elected option not, without the prior written consent of the Indemnitee, (ii).
(ci) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates consent to the entry of any judgment which does not include as an unconditional term thereof the giving delivery by such the claimant or plaintiff to each the Indemnitee of a written release from all liability liability, damage or claims of any nature or kind in respect of such Third-Party Claim, and Claim or (ii) such settlement does not provide for settle or compromise any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of in any participation by such Indemnifying Party, at each such manner that may adversely affect the Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 2 contracts
Sources: Separation Agreement (Zapata Corp), Separation Agreement (Omega Protein Corp)
Procedure for Indemnification. (a) If an any Indemnitee shall receive receives notice or otherwise learn of the assertion by a person (including any governmental entity) who is not a party to this Agreement or to any of the Transaction Documents of any claim or of the commencement by any such Person of any action (a “Third-Party Claim”) Claim with respect to which an Indemnifying Party may be is obligated under this Agreement to provide indemnification pursuant to this Agreementindemnification, each such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after becoming aware of such Third-Party Claim; provided, however, that the failure of any Indemnitee to give notice as required by provided in this Section 5.5 3.4 shall not relieve each any Indemnifying Party of its obligations under this Article VIII, except to the extent that each such Indemnifying Party is actually prejudiced by such failure to give notice. Such notice shall describe the such Third-Party Claim in reasonable detaildetail and, and if practicable, shall indicate the estimated amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
(b) An Indemnifying Party may elect to defend or to seek to settle or compromiseParty, at such Indemnifying Party’s 's own expense and through counsel chosen by such Indemnifying Party’s own Party (which counsel shall be reasonably acceptable satisfactory to each the Indemnitee), may elect to defend any Third-Party Claim; provided, provided however, that such an election by the Indemnifying Party must confirm in writing that it agrees that each shall be deemed an admission of its obligation to indemnify the Indemnitee is entitled with respect to indemnification hereunder in respect of such Third-Party Claim. Within 30 days If an Indemnifying Party elects to defend a Third-Party Claim, then, within ten Business Days after receiving notice of the receipt of notice from an Indemnitee in accordance with Section 5.5(a) such Third-Party Claim (or sooner, if the nature of such Third-Party Claim so requires), the such Indemnifying Party shall notify each the Indemnitee of its election whether intent to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim)do so, and each such Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Party Claim. Such Indemnifying Party shall pay such Indemnitee's reasonable out-of-pocket expenses incurred in connection with such cooperation. After notice from an Indemnifying Party to each an Indemnitee of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees and the Indemnifying Party such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.a
Appears in 2 contracts
Sources: Distribution Agreement (SLH Corp), Distribution Agreement (SLH Corp)
Procedure for Indemnification. (a) If An Indemnified Party shall give prompt written notice (a "Claim Notice") to the Escrow Agent, with a copy to the Major Shareholder, of any claim or event known to it which does, or in its reasonable judgment may, give rise to a claim for indemnification hereunder (an Indemnitee "Indemnifiable Claim") by the Indemnified Party against the Major Shareholder; provided that the failure of any Indemnified Party to give Claim Notice as provided in this Section 3(a) shall receive notice or otherwise learn not relieve the Major Shareholder of its obligations under this Agreement, except to the extent that such failure has materially and adversely affected the rights of the assertion Major Shareholder. A Claim Notice shall specify the basis for and estimated amount of such Indemnifiable Claim. In the case of any claim for indemnification hereunder arising out of a claim, action, suit or proceeding brought by a person (including any governmental entity) Person who is not a party to this Agreement or to any of the Transaction Documents of any claim or of the commencement by any such Person of any action (a “"Third-Party Claim”) "), the Indemnified Party shall also give the Major Shareholder copies of any written claims, process or legal pleadings with respect to which an Indemnifying such Third-Party may be obligated to provide indemnification pursuant to this Agreement, each such Indemnitee shall give each such Indemnifying Party written notice thereof Claim promptly after becoming aware such documents are received by the Indemnified Party.
(b) The Indemnified Party shall be entitled to control the defense of such any Third-Party Claim; provided, however, that the failure of any Indemnitee to give notice as required by this Section 5.5 shall not relieve each Indemnifying Party of its obligations under this Article V, except to the extent that each such Indemnifying Party is prejudiced by such failure to give notice. Such notice shall describe the Third-Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or Major Shareholder may be sustained by each such Indemnitee.
(b) An Indemnifying Party may elect to defend or to seek to settle or compromiseelect, at such Indemnifying Party’s its own expense cost and by such Indemnifying Party’s own counsel reasonably acceptable expense, to each Indemnitee, participate in any Third-Party Claim; provided further, provided however, that the Indemnifying Major Shareholder shall not take any action with respect to such Third-Party must confirm Claim before consulting with, and receiving the consent of, each Indemnified Party involved. The Major Shareholder shall reasonably cooperate in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect of the compromise of, or defense against, such Third-Party Claim. Within 30 days The Major Shareholder shall pay its own costs and expenses incurred in connection with such cooperation. The Indemnified Party shall not consent to entry of any judgement or enter into any settlement without the prior written consent of the receipt of notice from an Indemnitee in accordance with Section 5.5(aMajor Share holder (which consent shall not be unreasonably withheld).
(c) If the Indemnified Party elects not to compromise or defend against a Third-Party Claim, the Major Shareholder shall pay, compromise or defend such Third-Party Claim at the Major Shareholder's own cost and expense. Major Shareholder shall, within ten days (or sooner, if the nature of such Third-Party Claim so requires), notify the Indemnifying Indemnified Party shall notify each Indemnitee of its election whether intent to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each Indemniteepay, the Indemnifying Party shall be deemed to have elected not to assume responsibility for compromise or defend such Third-Party Claim), and each Indemnitee such Indemnified Party shall reasonably cooperate in the compromise of, or defense against, such Third-Party Claim. The Major Shareholder shall pay the Indemnified Party's costs and expenses incurred in connection with such cooperation. The Major Shareholder shall not consent to entry of any judgment or enter into any settlement without the prior written consent of each related Indemnified Party (which consent shall not be unreasonably withheld), unless such judgment or settlement provides solely for money damages or compromise other money payments for which such Indemnified Party is entitled to indemnification hereunder and includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect of such Third-Party Claim. After notice from the Major Shareholder to an Indemnifying Indemnified Party to each Indemnitee of its election to assume responsibility for the defense of a Third-Party Claim, such Indemnifying Party the Major Shareholder shall not be liable to each such Indemnitee Indemnified Party under this Article V Sections 2 or 3 hereof for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee Indemnified Party in connection with the defense thereof; providedprovided that such Indemnified Party shall have the right to employ one counsel of its choice to represent such Indemnified Party if, however, that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ Indemnified Party's reasonable judgment there exists judgment, a conflict of interest between such Indemnitees Indemnified Party and the Indemnifying Major Shareholder exists in respect of such claim, or if there is a reasonable likelihood that a Third-Party such Indemnitees shall Claim may have the right to employ separate counsel a material adverse effect on an Indemnified Party, and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying PartyMajor Shareholder.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) If the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss Losses shall, at any time subsequent to the payment required by pursuant to this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Indemnified Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claimMajor Shareholder.
Appears in 2 contracts
Sources: Indemnification Agreement (Softworks Inc), Indemnification Agreement (Eagle Merger Corp)
Procedure for Indemnification. (a) If an Indemnitee An Indemnified Party shall receive give written notice (a "Claim Notice") to any entity or otherwise learn of the assertion by a person (including any governmental entity) Person who is not a party to this Agreement or to any of the Transaction Documents of any claim or of the commencement by any such Person of any action (a “Third-Party Claim”) with respect to which an Indemnifying Party may be obligated to provide indemnification pursuant (an "Indemnifying Party") for any claim under this ARTICLE 8 (an "Indemnification Claim"), reasonably promptly, but in any event (A) prior to this Agreementexpiration of any applicable survival period set forth in Section 9.1, each and (B) if such Indemnitee shall give each such Indemnifying Indemnification Claim relates to the assertion against an Indemnified Party of any claim by a third party (a "third party action"), within forty-five (45) days after receipt by the Indemnified Party of written notice thereof promptly after becoming aware of a legal process relating to such Third-Party Claimthird party action; provided, however, that the failure of any Indemnitee to give notice as required by this Section 5.5 so notify the Indemnifying Party within such time period shall not relieve each the Indemnifying Party of its obligations under this Article Vany obligation or liability to the Indemnified Party, except to the extent that each such the Indemnifying Party demonstrates that its ability to resolve such Indemnification Claim is prejudiced by materially and adversely affected thereby. An Indemnified Party shall not submit a Claim Notice unless it certifies in writing that it believes in good faith that it is entitled to be indemnified with respect to the Damages specified in such failure to give notice. Such notice shall describe the Third-Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such IndemniteeNotice.
(b) Unless the Indemnifying Party contests the Indemnification Claim in a writing given to the Indemnified Party within thirty (30) days after receipt of a Claim Notice and describing in reasonable detail the basis for contesting the Indemnification Claim, the Indemnified Party shall, subject to the other terms of this ARTICLE 8, be paid the amount of Damages related to such Indemnification Claim or the uncontested portion thereof. An Indemnifying Party may elect to defend shall not contest any Indemnification Claim (or to seek to settle or compromise, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel reasonably acceptable to each Indemnitee, any Third-Party Claim, provided that the Indemnifying Party must confirm portion thereof) unless it certifies in writing that it agrees believes in good faith that each Indemnitee the Indemnified Party is not entitled to indemnification hereunder be indemnified with respect to the Damages specified in respect of such Third-Party Claimclaim. Within 30 days of the receipt of notice from an Indemnitee in accordance with Section 5.5(a) (or sooner, if the nature of such Third-Party Any disputed Indemnification Claim so requires), the Indemnifying Party shall notify each Indemnitee of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim), and each Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each Indemnitee of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees and the Indemnifying Party such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice resolved either (i) to reject the settlement in a written agreement signed by Buyer and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, Seller or (ii) to reject by the settlement and continue to refrain from participation in the defense final decision of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records a court or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion trier of each such Indemnifying Partyfact.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 2 contracts
Sources: Asset Purchase Agreement (NCR Corp), Asset Purchase Agreement (NCR Corp)
Procedure for Indemnification. (a) If an Indemnitee The following provisions shall receive notice or otherwise learn of the assertion by a person (including any governmental entity) who is not a party to this Agreement or apply to any of the Transaction Documents of any claim or of the commencement by any such Person of any action (a “Third-Party Claim”) with respect to Claims for which an Indemnifying Party may be obligated to provide indemnification indemnify an Indemnified Party pursuant to this Agreement, each such Indemnitee shall give each such Indemnifying :
(i) upon receipt from a third party by the Indemnified Party written of notice thereof promptly after of a Claim or the Indemnified party becoming aware of such Third-a Claim in respect of which the Indemnified Party Claim; providedproposes to demand indemnification from the Indemnifying Party, howeverthe Indemnified Party shall give notice to that effect to the Indemnifying Party with reasonable promptness, provided that the failure of any Indemnitee to give such notice as required by this Section 5.5 shall not relieve each an Indemnifying Party of its obligations under this Article V, from any liability it may have to the Indemnified Party except to the extent that each such the Indemnifying Party is prejudiced by such failure to give notice. Such notice shall describe the Third-Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.thereby;
(bii) An Indemnifying Party may elect to defend or to seek to settle or compromise, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel reasonably acceptable to each Indemnitee, any Third-Party Claim, provided that in the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect case of such Third-Party Claim. Within 30 days of the receipt of notice Claims arising from an Indemnitee in accordance with Section 5.5(a) (or sooner, if the nature of such Third-Party Claim so requires)third parties, the Indemnifying Party shall notify each Indemnitee of its election whether have the right by notice to assume responsibility for such Third-Party Claim the Indemnified party not later than thirty (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 30) days after receipt of the notice described in paragraph (i) above to assume the control of the defense, compromise or settlement of the Claims, provided that such notice from each Indemniteeassumption shall, by its terms, be without costs to the Indemnified Party and the Indemnifying Party shall at the Indemnified Party's request furnish it with reasonable security against any costs or other liabilities to which it may be or become exposed by reason of such defense, compromise or settlement;
(iii) upon the assumption of control by the Indemnifying Party as aforesaid, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim)diligently proceed with the defense, and each Indemnitee shall cooperate in the defense compromise or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each Indemnitee the Claims at its sole expense, including employment of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees and the Indemnifying Party such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnified Party and, in connection therewith, the Indemnified Party shall co-operate fully, but at the expense of the Indemnifying Party) , to make available to the Indemnifying Party all pertinent information and witnesses under the Indemnified Party's control, make such assignments and take such other steps as in the opinion of counsel for the Indemnifying Party are necessary to enable the Indemnifying Party to conduct such defense; provided always that the Indemnified Party shall be paid by each such Indemnifying Party. If any entitled to reasonable security from the Indemnifying Party elects not for the expense, costs of other liabilities to assume responsibility for a Third-Party Claim (which election it may be made only in or may become exposed by reason of such co-operation;
(iv) the event final determination of a good faith dispute that a claim was inappropriately tendered under Section 5.2 any such Claims arising from third parties, including all related costs and expenses, will be binding and conclusive upon the Parties as to the validity or 5.3invalidity, as the case may be), each be of such Indemnitee may defend or Claims against the Indemnifying Party hereunder; and
(subject v) should the Indemnifying Party fail to give notice to the following sentence) seek to compromise or settle such Third-Indemnified Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures as provided in connection with the claim, or paragraph (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemniteeabove, the Indemnifying Indemnified Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability entitled to make available that are necessary such settlement of the Claims as in its sole discretion may appear advisable, and such settlement or appropriate for such defense, within any other final determination of the reasonable discretion of each such Claims shall be binding upon the Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 2 contracts
Sources: Share Exchange Agreement (Spantel Communications Inc), Merger Agreement (Interunion Financial Corp)
Procedure for Indemnification. The procedure for indemnification shall be as follows:
(a) If an Indemnitee The Party seeking indemnification under this Article 12 (the “Claimant”) shall receive give notice or otherwise learn of to the assertion by a person Party from whom indemnification is sought (including any governmental entitythe “Indemnitor”) who is not a party to this Agreement or to any of the Transaction Documents of any claim or liability that might result in an indemnified Loss (an “Indemnified Claim”), specifying in reasonable detail (i) the factual basis for and circumstances surrounding the Indemnified Claim; and (ii) the amount of the commencement potential Loss pursuant to the Indemnified Claim if then known. If the Indemnified Claim relates to a Proceeding filed by any such Person a third party against Claimant, notice shall be given by Claimant as soon as practical, but in all events within fifteen (15) business days after Claimant learns of any action the Proceeding or written notice of the Proceeding is given to Claimant. In all other circumstances, notice shall be given by Claimant as soon as practical, but in all events within twenty (a “Third-Party Claim”20) with respect business days after Claimant becomes aware of the facts giving rise to which an Indemnifying Party may the potential Loss; provided, however, that should the Claimant fail to notify the Indemnitor in the time required above, the Indemnitor shall only be obligated to provide indemnification relieved of its obligations pursuant to this AgreementArticle 12 to the extent the Indemnitor is materially prejudiced by such delay or failure to timely give notice of an Indemnified Claim or potential Loss.
(b) The Claimant shall make available to Indemnitor and/or its authorized representatives the information relied upon by the Claimant to substantiate the Indemnified Claim or Loss and shall make available any information or documentation in Claimant’s possession, each custody or control that is or may be helpful in defending or responding to the Indemnified Claim or Loss.
(c) The Indemnitor shall have thirty (30) days after receipt of the indemnification notice referred to in sub-section (a) to notify the Claimant in writing that it elects to conduct and control the defense of any such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after becoming aware of such Third-Party Indemnified Claim; provided, however, that such thirty (30) day period shall be reduced to such shorter period of time set forth in the failure of any Indemnitee to give applicable indemnification notice as required by this Section 5.5 shall not relieve each Indemnifying Party of its obligations under this Article V, except to if the extent that each such Indemnifying Party Indemnified Claim or Loss is prejudiced by such failure to give notice. Such notice shall describe the Thirdbased upon a third-Party Claim party claim requiring a response in reasonable detail, and shall indicate the amount fewer than thirty (estimated if necessary30) of the Indemnifiable Loss that has been or may be sustained by each such Indemniteedays.
(bd) An Indemnifying Party may elect If the Indemnitor does not advise the Claimant of its intent to defend conduct and control the defense of the Indemnified Claim or Proceeding within the time period specified above, the Claimant shall have the right to seek to settle defend, contest, settle, or compromise, at compromise such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel reasonably acceptable to each Indemnitee, any Third-Party Claim, provided that Indemnified Claim or Proceeding. If the Indemnifying Party must confirm in writing Indemnitor properly advises the Claimant that it agrees that each Indemnitee is entitled will conduct and control the Indemnification Claim or Proceeding, the Indemnitor shall have the right to indemnification hereunder in respect undertake, conduct, defend, and control, through counsel of such Third-Party Claim. Within 30 days its own choosing and at its sole expense, the conduct, defense, and settlement of the receipt of notice from an Indemnitee in accordance with Section 5.5(a) (Indemnified Claim or sooner, if the nature of such Third-Party Claim so requires), the Indemnifying Party shall notify each Indemnitee of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim)Proceeding, and each Indemnitee the Claimant shall cooperate in with the defense or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each Indemnitee of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee Indemnitor in connection with the defense thereoftherewith; provided, however, that if that: (i) the defendants in Indemnitor shall not consent to the imposition of any such claim include both injunction against the Indemnifying Party and one or more Indemnitees and Claimant without the prior written consent of the Claimant, which consent shall not be unreasonably withheld; (ii) the Indemnitor shall permit the Claimant to participate in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees and conduct or settlement through counsel chosen by the Indemnifying Party such Indemnitees shall have Claimant, but the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid borne by each the Claimant; (iii) upon a final determination of Proceeding, the Indemnitor shall promptly reimburse the Claimant for the full amount of any indemnified Loss or indemnified portion of any Loss resulting from the Indemnified Claim or Proceeding and all reasonable expenses related to such Indemnifying Party. If any Indemnifying Party elects not to assume responsibility indemnified Loss incurred by the Claimant, except (A) fees and expenses of counsel for a Third-Party Claim (which election may be made only the Claimant in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 Indemnitor has conducted or 5.3, as controlled the case may be), each such Indemnitee may defend or Proceeding and (subject to the following sentenceB) seek to compromise or settle such Third-Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement any Loss not indemnifiable by Indemnitor; and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay no Indemnitor may, without the settlement. In prior written consent of the event such Indemnifying Party makes no response to such written notice from an IndemniteeClaimant, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend settle or to seek to compromise any Third-Party Claimcompromise, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 consent to the contraryentry of any judgment in connection with, an Indemnifying Party shall not settle or compromise any Third-Party Claim Proceeding with respect to the claim described in the indemnification notice unless (iA) such settlement or compromise contemplates as an unconditional term thereof involves only the giving by such claimant or plaintiff to each Indemnitee payment of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and money; (B) there is no finding or admission of liability, any violation of any Law or any violation of the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result rights of any Person by the Claimant; and (C) the Indemnitor obtains an unconditional release of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Claimant from all Indemnified Claims or potential Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee arising out of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand described in the place of such Indemnitee as to indemnification notice and any events Indemnified Claim or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claimProceeding related thereto.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Emmis Communications Corp), Asset Purchase Agreement (Emmis Communications Corp)
Procedure for Indemnification. (a) If an any Indemnitee shall receive receives notice or otherwise learn of the assertion by a person (including any governmental entity) who is not a party to this Agreement or to any of the Transaction Documents of any claim or of the commencement by any such Person of any action (a “Third-Party Claim”) Claim with respect to which an Indemnifying Party may be is obligated under this Agreement to provide indemnification pursuant to this Agreementindemnification, each such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after becoming aware of such Third-Party Claim; provided, however, that the failure of any Indemnitee to give notice as required by provided in this Section 5.5 4.2 shall not relieve each any Indemnifying Party of its obligations under this Article V4, except to the extent that each such Indemnifying Party is actually prejudiced by such failure to give notice. Such notice shall describe the such Third-Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
(b) An Indemnifying Party may elect to defend or to seek to settle or compromiseParty, at such Indemnifying Party’s 's own expense and through counsel chosen by such Indemnifying Party’s own Party (which counsel shall be reasonably acceptable satisfactory to each the Indemnitee), may elect to defend any Third-Party Claim, provided that the . If an Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled elects to indemnification hereunder in respect defend a Third-Party Claim, then, within ten (10) Business Days after receiving notice of such Third-Party Claim. Within 30 days of the receipt of notice from an Indemnitee in accordance with Section 5.5(a) Claim (or sooner, if the nature of such Third-Party Claim so requires), the such Indemnifying Party shall notify each the Indemnitee of its election whether intent to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim)do so, and each such Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each an Indemnitee of its election to assume responsibility for the defense of a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V 4 for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, that if such Indemnitee shall have the defendants in any right to employ one law firm as counsel to represent such claim include both Indemnitee (which firm shall be reasonably acceptable to the Indemnifying Party and one or more Indemnitees and Party) if, in such Indemnitees’ Indemnitee's reasonable judgment there exists judgment, either a conflict of interest between such Indemnitees Indemnitee and the such Indemnifying Party exists in respect of such Indemnitees shall have the right claim or there may be defenses available to employ separate counsel such Indemnitee which are different from or in addition to those available to such Indemnifying Party, and in that event (i) the reasonable fees and expenses of such separate counsel shall be paid by such Indemnifying Party (but it being understood, however, that the Indemnifying Party shall not be liable for the expenses of more than one separate counsel reasonably satisfactory (in addition to the Indemnifying Partylocal counsel) shall be paid by with respect to any Third-Party Claim (even if against multiple Indemnitees)) and (ii) each of such Indemnifying PartyParty and such Indemnitee shall have the right to conduct its own defense in respect of such claim. If any an Indemnifying Party elects not to assume responsibility for defend against a Third-Party Claim Claim, or fails to notify an Indemnitee of its election as provided in this Section 4.2 within the period of ten (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.310) Business Days described above, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to defend, compromise and settle such Third-Party Claim; provided, however, that no such Indemnitee may compromise or settle any such Third-Party Claim without the prior written notice to each such consent of the Indemnifying Party, which consent shall have not be withheld unreasonably. Notwithstanding the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemniteeforegoing, the Indemnifying Party shall be deemed to have elected option not, without the prior written consent of the Indemnitee, (ii).
(ci) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates consent to the entry of any judgment which does not include as an unconditional term thereof the giving delivery by such the claimant or plaintiff to each the Indemnitee of a written release from all liability liability, damage or claims of any nature or kind in respect of such Third-Party Claim, and Claim or (ii) such settlement does not provide for settle or compromise any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of in any participation by such Indemnifying Party, at each such manner that may adversely affect the Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 2 contracts
Sources: Investment and Distribution Agreement (Demandstar Com Inc), Investment and Distribution Agreement (Demandstar Com Inc)
Procedure for Indemnification. (a) If an Indemnitee The following provisions shall receive notice or otherwise learn of the assertion by a person (including any governmental entity) who is not a party to this Agreement or apply to any of the Transaction Documents of any claim or of the commencement by any such Person of any action (a “Third-Party Claim”) with respect to Claims for which an Indemnifying Party may be obligated to provide indemnification indemnify an Indemnified Party pursuant to this Agreement, each such Indemnitee shall give each such Indemnifying : i. upon receipt from a third party by the Indemnified Party written of notice thereof promptly after of a Claim or the Indemnified party becoming aware of such Third-a Claim in respect of which the Indemnified Party Claim; providedproposes to demand indemnification from the Indemnifying Party, howeverthe Indemnified Party shall give notice to that effect to the Indemnifying Party with reasonable promptness, provided that the failure of any Indemnitee to give such notice as required by this Section 5.5 shall not relieve each an Indemnifying Party of its obligations under this Article V, from any liability it may have to the Indemnified Party except to the extent that each such the Indemnifying Party is prejudiced by such failure to give noticethereby; ii. Such notice shall describe in the Third-Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) case of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
(b) An Indemnifying Party may elect to defend or to seek to settle or compromise, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel reasonably acceptable to each Indemnitee, any Third-Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect of such Third-Party Claim. Within 30 days of the receipt of notice Claims arising from an Indemnitee in accordance with Section 5.5(a) (or sooner, if the nature of such Third-Party Claim so requires)third parties, the Indemnifying Party shall notify each Indemnitee of its election whether have the right by notice to assume responsibility for such Third-Party Claim the Indemnified party not later than thirty (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 30) days after receipt of the notice described in paragraph (i) above to assume the control of the defense, compromise or settlement of the Claims, provided that such notice from each Indemniteeassumption shall, by its terms, be without costs to the Indemnified Party and the Indemnifying Party shall at the Indemnified Party's request furnish it with reasonable security against any costs or other liabilities to which it may be or become exposed by reason of such defense, compromise or settlement; iii. upon the assumption of control by the Indemnifying Party as aforesaid, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim)diligently proceed with the defense, and each Indemnitee shall cooperate in the defense compromise or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each Indemnitee the Claims at its sole expense, including employment of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees and the Indemnifying Party such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnified Party and, in connection therewith, the Indemnified Party shall co-operate fully, but at the expense of the Indemnifying Party) , to make available to the Indemnifying Party all pertinent information and witnesses under the Indemnified Party's control, make such assignments and take such other steps as in the opinion of counsel for the Indemnifying Party are necessary to enable the Indemnifying Party to conduct such defense; provided always that the Indemnified Party shall be paid by each such Indemnifying Party. If any entitled to reasonable security from the Indemnifying Party elects not for the expense, costs of other liabilities to assume responsibility for a Third-Party Claim (which election it may be made only in or may become exposed by reason of such co-operation; iv. the event final determination of a good faith dispute that a claim was inappropriately tendered under Section 5.2 any such Claims arising from third parties, including all related costs and expenses, will be binding and conclusive upon the Parties as to the validity or 5.3invalidity, as the case may be), each be of such Indemnitee may defend or (subject Claims against the Indemnifying Party hereunder; and v. should the Indemnifying Party fail to give notice to the following sentence) seek to compromise or settle such Third-Indemnified Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures as provided in connection with the claim, or paragraph (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemniteeabove, the Indemnifying Indemnified Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability entitled to make available that are necessary such settlement of the Claims as in its sole discretion may appear advisable, and such settlement or appropriate for such defense, within any other final determination of the reasonable discretion of each such Claims shall be binding upon the Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 2 contracts
Sources: Share Exchange Agreement (Playandwin Inc), Share Exchange Agreement (Playandwin Inc)
Procedure for Indemnification. (a) If an any Indemnitee shall receive determines that it is or may be entitled to indemnification by any Indemnifying Party (other than in connection with any Third Party Claim), the Indemnitee will deliver to the Indemnifying Party a written notice specifying, to the extent reasonably practicable, the basis for its claim for indemnification and the amount for which the Indemnitee reasonably believes it is entitled to be indemnified. Within 60 calendar days after receipt of such notice, the Indemnifying Party will pay the Indemnitee such amount in cash or otherwise learn other immediately available funds unless the Indemnifying Party objects to the claim for indemnification or the amount by written notice setting forth the grounds therefor within such 60 calendar day period. If the Indemnifying Party does not give the Indemnified Party written notice objecting to such indemnity claim and setting forth the grounds therefor within 60 calendar days after receipt of such notice, the Indemnifying Party will be deemed to have acknowledged its liability for such claim and the Indemnitee may exercise any and all of its rights under applicable law to collect such amount.
(b) If any Indemnitee receives notice of the assertion by a person (including any governmental entity) who is not a party to this Agreement or to any of the Transaction Documents of any claim or of the commencement by any such Person of any action (a “Third-Party Claim”) Claim with respect to which an Indemnifying Party may be is obligated under this Agreement to provide indemnification pursuant to this Agreementindemnification, each such Indemnitee shall will give each such Indemnifying Party written notice thereof promptly after becoming aware of such Third-Third- Party Claim; provided, however, that the failure of any Indemnitee to give such notice as required by this Section 5.5 shall will not relieve each any Indemnifying Party of its obligations under this Article VIV, except to the extent that each such Indemnifying Party is actually prejudiced by such failure to give notice. Such notice shall will describe the such Third-Party Claim in reasonable detaildetail and, and shall if practicable, will indicate the estimated amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
(bc) An Indemnifying Party may elect to defend or to seek to settle or compromiseParty, at such Indemnifying Party’s 's own expense and through counsel chosen by such Indemnifying Party’s own Party (which counsel shall be reasonably acceptable satisfactory to each the Indemnitee), may elect to defend any Third-Third- Party Claim. If an Indemnifying Party elects to defend a Third- Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect then, within fifteen calendar days after receiving notice of such Third-Party Claim. Within 30 days of the receipt of notice from an Indemnitee in accordance with Section 5.5(a) Claim (or sooner, if the nature of such Third-Party Claim so requires), the such Indemnifying Party shall will notify each the Indemnitee of its election whether intent to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim)do so, and each such Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Party Claim. Such Indemnifying Party will pay such Indemnitee's reasonable out-of- pocket expenses incurred in connection with such cooperation. After notice from an Indemnifying Party to each an Indemnitee of its election to assume responsibility for the defense of a Third-Party Claim, such Indemnifying Party shall will not be liable to each such Indemnitee under this Article V IV for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, that if such Indemnitee will have the defendants in any right to employ one law firm as counsel to represent such claim include both Indemnitee (which firm shall be reasonably acceptable to the Indemnifying Party and one or more Indemnitees and Party) if, in such Indemnitees’ Indemnitee's reasonable judgment there exists judgment, either a conflict of interest between such Indemnitees Indemnitee and the such Indemnifying Party exists in respect of such Indemnitees shall have the right claim or there may be defenses available to employ separate counsel such Indemnitee which are different from or in addition to those available to such Indemnifying Party, and in that event (i) the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by such Indemnitee and (ii) each of such Indemnifying PartyParty and such Indemnitee shall have the right to run its own defense in respect of such claim. If any an Indemnifying Party elects not to assume responsibility for defend against a Third-Party Claim (which Claim, or fails to notify an Indemnitee of its election may be made only as provided in this Section 4.02 within the event period of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3fifteen calendar days described above, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to defend, compromise or and settle such Third-Party Claim; provided, however, that no such Indemnitee may compromise or settle any such Third- Party Claim without the prior written notice to each such consent of the Indemnifying Party, which consent shall have not be withheld unreasonably. Notwithstanding the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemniteeforegoing, the Indemnifying Party shall be deemed to have elected option not, without the prior written consent of the Indemnitee, (ii).
(ci) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates consent to the entry of any judgment which does not include as an unconditional term thereof the giving delivery by such the claimant or plaintiff to each the Indemnitee of a written release from all liability in respect of such Third-Party Claim, and Claim or (ii) such settlement does not provide settle or compromise any Third- Party Claim in any manner that in the reasonable judgment of the Indemnifying Party, is likely to adversely affect the Indemnitee.
(d) If for any non-monetary relief reason the indemnification provided by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify this Agreement is unenforceable, the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior will contribute to the date such Indemnifying Party notifies each such amount payable by the Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing the related losses an amount appropriate to pursue such Third-Party Claimreflect equitable considerations.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 2 contracts
Sources: Separation Agreement (Level 3 Communications Inc), Separation Agreement (Kiewit Peter Sons Inc)
Procedure for Indemnification. (a) If an Indemnitee shall receive notice or otherwise learn of the assertion by a person (including any governmental entity) who is not a party to this Agreement or to any of the Transaction Documents Ancillary Agreements or Conveyance and Assumption Instruments of any claim or of the commencement by any such Person of any action (a “Third-Party Claim”) with respect to which an Indemnifying Party may be obligated to provide indemnification pursuant to this Agreement, each such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after becoming aware of such Third-Party Claim; provided, however, that the failure of any Indemnitee to give notice as required by this Section 5.5 6.6 shall not relieve each Indemnifying Party of its obligations under this Article VARTICLE VI, except to the extent that each such Indemnifying Party is prejudiced by such failure to give notice. Such notice shall describe the Third-Party Claim in reasonable detail, detail and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
(b) An Indemnifying Party may elect to defend or to seek to settle or compromise, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel reasonably acceptable to each Indemnitee, any Third-Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect of such Third-Party Claim. Within 30 days of the receipt of notice from an Indemnitee in accordance with Section 5.5(a6.6(a) (or sooner, if the nature of such Third-Party Claim so requires), the Indemnifying Party shall notify each Indemnitee of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim), and each Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each Indemnitee of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V ARTICLE VI for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees and the Indemnifying Party Party, such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 6.2 or 5.36.3, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records records, or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 6.6 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party Claim, Claim and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), ) plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.46.5, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement settlement, or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 2 contracts
Sources: Separation and Distribution Agreement (Associated Capital Group, Inc.), Separation and Distribution Agreement (Gamco Investors, Inc. Et Al)
Procedure for Indemnification. In the event that any Indemnitee shall incur or suffer any Losses in respect of which indemnification may be sought hereunder, the Indemnitee shall assert a claim for indemnification by written notice (athe "Notice") If to the Indemnitor stating the nature and basis of such claim. Promptly after receipt by an Indemnitee shall receive of written notice or otherwise learn of the assertion by of a person (including any governmental entity) who is not a party to this Agreement claim or to any of the Transaction Documents commencement of any claim action, litigation or of the commencement proceeding by any such Person of any action third party (a “"Third-Party Claim”") with respect to any matter for which an Indemnifying Party indemnification is or may be obligated to provide indemnification owing pursuant to this AgreementSection 11.3, each such the Indemnitee shall give notice to the Indemnitor and shall thereafter keep the Indemnitor informed of all other information it receives with respect thereto; provided, that failure of the Indemnitee to give the Indemnitor prompt notice and such other information as provided herein shall not relieve the Indemnitor of any of its obligations hereunder unless and then only to the extent that the Indemnitor shall have been actually prejudiced thereby. The parties each agree to cooperate and will cause the Indemnitor to cooperate with and render such Indemnifying Party written notice thereof promptly after becoming aware assistance as may reasonably be requested in order to insure the proper and adequate defense of any such Third-Party Claim; providedClaim or proceeding, howeverwhich assistance shall include, that without limitation, making appropriate personnel reasonably available for any discovery or trial. If the failure Indemnitor fails or refuses to undertake the defense of any Indemnitee to give notice as required by this Section 5.5 shall not relieve each Indemnifying Party of its obligations under this Article V, except to the extent that each such Indemnifying Party is prejudiced by such failure to give notice. Such notice shall describe the Third-Party Claim in reasonable detail, and shall indicate the amount within thirty (estimated if necessary30) days after delivery of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
(b) An Indemnifying Party may elect notice, the Indemnitee shall have the right to defend or to seek to settle or compromise, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel reasonably acceptable to each Indemnitee, any Third-Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect of such Third-Party Claim. Within 30 days take exclusive control of the receipt of notice from an Indemnitee in accordance with Section 5.5(a) (or soonerdefense, if the nature negotiation and/or settlement of such Third-Party Claim so requires), at the Indemnifying Party shall notify each Indemnitee of its election whether to assume responsibility for such Third-Party Claim (provided that if Indemnitor's expense. Neither the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each Indemnitee, Indemnitor nor the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim), and each Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each Indemnitee of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees and the Indemnifying Party such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such without the consent of the other, which consent shall not be unreasonably withheld or delayed; provided, that any settlement or compromise contemplates as includes an unconditional term thereof release of the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement liabilities or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior obligations relating to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 2 contracts
Sources: Merger Agreement (Registry Magic Inc), Merger Agreement (Registry Magic Inc)
Procedure for Indemnification. (a) If an any Indemnitee shall receive receives notice or otherwise learn of the assertion by a person (including any governmental entity) who is not a party to this Agreement or to any of the Transaction Documents of any claim or of the commencement by any such Person of any action (a “Third-Third- Party Claim”) Claim with respect to which an Indemnifying Party may be is obligated under this Agreement to provide indemnification pursuant to this Agreementindemnification, each such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after becoming aware of such Third-Party Claim; provided, however, that the failure ------------------------------------------------------ of any Indemnitee to give notice as required by provided in this Section 5.5 4.04 -------------------- shall not relieve each any Indemnifying Party of its obligations under this Article VIV, except to the extent that each such Indemnifying Party is actually prejudiced by such failure to give notice. Such notice shall describe the such Third-Party Claim in reasonable detaildetail and, and if practicable, shall indicate the estimated amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
(b) An Indemnifying Party may elect to defend or to seek to settle or compromiseParty, at such Indemnifying Party’s 's own expense and through counsel chosen by such Indemnifying Party’s own Party (which counsel shall be reasonably acceptable satisfactory to each the Indemnitee), may elect to defend any Third-Party Claim; provided, provided however, that such an election ----------------------------------------------- by the Indemnifying Party must confirm in writing that it agrees that each shall be deemed ------------------- 19 an admission of its obligation to Indemnify the Indemnitee is entitled with respect to indemnification hereunder in respect of such Third-Party Claim. Within 30 days If an Indemnifying Party elects to defend a Third- Party Claim, then, within ten (10) Business Days after receiving notice of the receipt of notice from an Indemnitee in accordance with Section 5.5(a) such Third-Party Claim (or sooner, if the nature of such Third-Party Claim so requires), the such Indemnifying Party party shall notify each the Indemnitee of its election whether intent to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim)do so, and each such Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Third- Party Claim. Such Indemnifying Party shall pay such Indemnitee's reasonable out-of-pocket expenses incurred in connection with such cooperation. After notice from an Indemnifying Party to each an Indemnitee of its election to assume responsibility for the defense of a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V IV for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, that if such Indemnitee shall have the defendants in any right ------------------------------------------------------------ to employ one law firm as counsel to represent such claim include both Indemnitee (which firm ----------------- shall be reasonably acceptable to the Indemnifying Party and one or more Indemnitees and Party) if, in such Indemnitees’ Indemnitee's reasonable judgment there exists judgment, either a conflict of interest between such Indemnitees Indemnitee and the such Indemnifying Party exists in respect of such Indemnitees shall have the right claim or there may be defenses available to employ separate counsel such Indemnitee which are different from or in addition to those available to such Indemnifying Party, and in that event (1) the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying PartyParty and (2) each of such Indemnifying Party and such Indemnitee shall have the right to run its own defense in respect of such claim. If any an Indemnifying Party elects not to assume responsibility for defend against a Third-Third- Party Claim Claim, or fails to notify an Indemnitee of its election as provided in this Section 4.04 within the period of ten (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.310) Business Days described above, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to defend, compromise and settle such Third- Party Claim; provided, however, that no such Indemnitee may compromise or settle ----------------- any such Third-Party Claim without the prior written notice to each such consent of the Indemnifying Party, which consent shall have not be withheld unreasonably. Notwithstanding the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemniteeforegoing, the Indemnifying Party shall be deemed to have elected option not, without the prior consent of the Indemnitee, (ii).
(c1) If an Indemnifying Party chooses to defend settle or to seek to compromise any Third-Third- Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records Claim or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 consent to the contrary, entry of any judgment which does not include as an Indemnifying unconditional term thereof the delivery by the claimant or plaintiff to the Indemnitee of a written release from all Liability in respect of such Third- Party shall not Claim or (2) settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof in any manner that may adversely affect the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 2 contracts
Sources: Distribution Agreement (Ventiv Health Inc), Distribution Agreement (Ventiv Health Inc)
Procedure for Indemnification. (a) If an Indemnitee The following provisions shall receive notice or otherwise learn of the assertion by a person (including any governmental entity) who is not a party to this Agreement or apply to any of the Transaction Documents of any claim or of the commencement by any such Person of any action (a “Third-Party Claim”) with respect to Claims for which an Indemnifying Party may be obligated to provide indemnification indemnify an Indemnified Party pursuant to this Agreement, each such Indemnitee shall give each such Indemnifying :
(a) upon receipt from a third party by the Indemnified Party written of notice thereof promptly after of a Claim or the Indemnified party becoming aware of such Third-a Claim in respect of which the Indemnified Party Claim; providedproposes to demand indemnification from the Indemnifying Party, howeverthe Indemnified Party shall give notice to that effect to the Indemnifying Party with reasonable promptness, provided that the failure of any Indemnitee to give such notice as required by this Section 5.5 shall not relieve each an Indemnifying Party of its obligations under this Article V, from any liability it may have to the Indemnified Party except to the extent that each such the Indemnifying Party is prejudiced by such failure to give notice. Such notice shall describe the Third-Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.thereby;
(b) An Indemnifying Party may elect to defend or to seek to settle or compromise, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel reasonably acceptable to each Indemnitee, any Third-Party Claim, provided that in the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect case of such Third-Party Claim. Within 30 days of the receipt of notice Claims arising from an Indemnitee in accordance with Section 5.5(a) (or sooner, if the nature of such Third-Party Claim so requires)third parties, the Indemnifying Party shall notify each Indemnitee of its election whether have the right by notice to assume responsibility for such Third-Party Claim the Indemnified party not later than thirty (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 30) days after receipt of the notice described in paragraph (i) above to assume the control of the defence, compromise or settlement of the Claims, provided that such notice from each Indemniteeassumption shall, by its terms, be without costs to the Indemnified Party and the Indemnifying Party shall at the Indemnified Party's request furnish it with reasonable security against any costs or other liabilities to which it may be or become exposed by reason of such defence, compromise or settlement;
(c) upon the assumption of control by the Indemnifying Party as aforesaid, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim)diligently proceed with the defence, and each Indemnitee shall cooperate in the defense compromise or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each Indemnitee the Claims at its sole expense, including employment of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees and the Indemnifying Party such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnified Party and, in connection therewith, the Indemnified Party shall co-operate fully, but at the expense of the Indemnifying Party) , to make available to the Indemnifying Party all pertinent information and witnesses under the Indemnified Party's control, make such assignments and take such other steps as in the opinion of counsel for the Indemnifying Party are necessary to enable the Indemnifying Party to conduct such defence; provided always that the Indemnified Party shall be paid by each such Indemnifying Party. If any entitled to reasonable security from the Indemnifying Party elects not for the expense, costs of other liabilities to assume responsibility for a Third-Party Claim (which election it may be made only in or may become exposed by reason of such co-operation;
(d) the event final determination of a good faith dispute that a claim was inappropriately tendered under Section 5.2 any such Claims arising from third parties, including all related costs and expenses, will be binding and conclusive upon the Parties as to the validity or 5.3invalidity, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt be of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, Claims against the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.; and
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-should the Indemnifying Party Claim fail to give notice to the Indemnified Party as provided in paragraph (ii) above, the Indemnified Party shall be asserted by written notice given by an Indemnitee entitled to each applicable Indemnifying Party. Each make such Indemnifying Party settlement of the Claims as in its sole discretion may appear advisable, and such settlement or any other final determination of the Claims shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of be binding upon the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 2 contracts
Sources: Share Exchange Agreement (VHS Network Inc/Ca), Share Exchange Agreement (VHS Network Inc/Ca)
Procedure for Indemnification. (a) If an Indemnitee any Action shall receive be threatened or instituted or any demand shall be asserted against any Indemnified Party in respect of which indemnification may be sought under the provisions of this Agreement, the Indemnified Party shall promptly cause written notice or otherwise learn of the assertion by a person (including any governmental entity) who is not a party to this Agreement or to any of the Transaction Documents of any claim such demand or Action of the commencement by any such Person of any action (a “Third-Party Claim”) with respect which it has knowledge to which an Indemnifying Party may be obligated to provide indemnification pursuant to this Agreement, each such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after becoming aware of such Third-Party Claim; provided, however, that the failure of any Indemnitee to give notice as required by this Section 5.5 shall not relieve each Indemnifying Party of its obligations under this Article V, except forwarded to the extent that each such Indemnifying Party is prejudiced by such failure to give noticeParty. Such notice shall describe contain a reference to the Third-provisions hereof or of such other agreement, instrument or certificate delivered pursuant hereto, in respect of which such Action or demand is being made. The Indemnified Party's failure to give the Indemnifying Party Claim prompt notice shall not preclude the Indemnified Party from obtaining indemnification from the Indemnifying Party under this Article IV unless the Indemnified Party's failure has materially prejudiced the Indemnifying Party's ability to defend the demand or Action. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay, settle, or compromise any Action or demand that is solely for money damages, provided that in reasonable detail, such event the Indemnified Party shall waive any right to indemnity therefor hereunder and shall indicate provide to the amount (estimated if necessary) Indemnifying Party a written release from all liability in respect of the Indemnifiable Loss that has been such Action or may be sustained by each such Indemniteedemand.
(b) An Indemnifying If the Indemnified Party may elect to defend or to seek to settle or compromise, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel reasonably acceptable to each Indemnitee, any Third-Party Claim, provided that seeks indemnification from the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect as a result of such Third-an Action or demand being made by a third party (a "Third Party Claim. Within 30 days of the receipt of notice from an Indemnitee in accordance with Section 5.5(a) (or sooner, if the nature of such Third-Party Claim so requires"), the Indemnifying Party shall notify each Indemnitee of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim), and each Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each Indemnitee of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees and the Indemnifying Party such Indemnitees shall have the right to employ separate counsel and in that event promptly assume the reasonable fees and expenses control of the defense of any Action with respect to such separate counsel (but not more than one separate Third Party Claim, including, at its own expense, employment by it of counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Indemnified Party. If any the Indemnifying Party elects not to assume responsibility for a Third-the control of the defense of any such Third Party Claim (which election may shall be made only in without prejudice to its right at any time to assume subsequently the event control of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3, as the case may besuch defense), each the Indemnifying Party will nonetheless be entitled, at its own expense, to participate in such Indemnitee may defend or (subject to defense. The Indemnified Party may, in its sole discretion and, if the following sentence) seek to compromise or settle such Third-Indemnifying Party Claim without prior written notice to each such Indemnifying Party, which shall have assumed the option within fifteen days following control of the receipt defense of such notice (i) the Action, at its own expense, employ counsel to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation represent it in the defense of the claimThird Party Claim, and in which such event each counsel for the Indemnifying Party shall cooperate with counsel for the Indemnified Party in such defense, provided that, if the Indemnifying Party shall have no further right to contest assumed the amount or reasonableness control of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount defense of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an IndemniteeAction, the Indemnifying Party shall direct and control the defense of such Third Party Claim or proceeding. Without the prior written consent of the Indemnified Party (which consent shall not be deemed to have elected option (iiunreasonably withheld or delayed).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle admit any liability with respect to, or settle, compromise or discharge, any Third-Third Party Claim unless (i) such or consent to the entry of any judgment with respect thereto, except in the case of any settlement or compromise contemplates that includes as an unconditional term thereof the giving delivery by such the claimant or plaintiff to each Indemnitee the Indemnified Party of a written release from all liability in respect of such Third-Third Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In addition, except as provided in the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free last sentence of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunderSection 4.4(a), plus (ii) whether or not the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period assumed the defense of 30 days after the receipt Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim or consent to the entry of any judgment with respect thereto, without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld or delayed), and the Indemnifying Party will not be subject to any liability for any such notice within which admission, settlement, compromise, discharge or consent to notify each applicable Indemnitee judgment made by an Indemnified Party without such prior written consent of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 2 contracts
Sources: Distribution Agreement (Norfolk Southern Corp), Distribution Agreement (Norfolk Southern Railway Co /Va/)
Procedure for Indemnification. (a) If an Indemnitee Notices of claims under this Agreement by Purchaser Indemnified Parties shall receive be given to the Seller and Monster within (i) the relevant survival period pursuant to Section 9.3 in case of claims for inaccuracy in or breach of representations and warranties and (ii) the relevant statute of limitations for all other claims. Such notice or otherwise learn of claim shall specify full information of the assertion by a person legal and factual basis of the claim and the evidence on which the relevant Party giving such notice relies and, to the extent reasonably determinable based on information then available, an estimate of the amount of Losses which are, or are to be, the subject of the claim (including any governmental entity) who is not a party to this Agreement or to any of Losses which are contingent on the Transaction Documents occurrence of any future event).
(b) In the case of any written claim or of the commencement demand asserted by any such Person of any action a third party (a “Third-Third Party Claim”) with respect to which against an Indemnified Party, the Indemnified Party shall notify the indemnifying party hereunder (the “Indemnifying Party may be obligated to provide indemnification pursuant to this AgreementParty”) promptly, each but in no event more than thirty (30) days following such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after becoming aware Indemnified Party’s receipt of such Third-a Third Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable, any other remedy sought thereunder, any relevant time constraints relating thereto, a reasonably detailed explanation of the events giving rise to such Third Party Claim and any other material details pertaining thereto (a “Third Party Claim Notice”); provided, however, provided that the failure of any Indemnitee to timely give notice as required by this Section 5.5 a Third Party Claim Notice shall not relieve each the Indemnifying Party of its obligations under this Article Vhereunder, except to the extent that each the Indemnifying Party shall have been actually and materially prejudiced by such failure. Thereafter, the Indemnified Party shall deliver to the Indemnifying Party, promptly following the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim.
(c) The Indemnified Party shall permit the Indemnifying Party (at the expense of such Indemnifying Party is prejudiced by such failure to give notice. Such notice shall describe and so long as the Third-Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
(b) An Indemnifying Party may elect acknowledges in writing its obligation to defend or indemnify the Indemnified Party for Losses related to seek such Third Party Claim) to settle or compromise, at assume the defense of such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel reasonably acceptable to each Indemnitee, any Third-Third Party Claim, provided that (i) counsel for the Indemnifying Party must confirm who shall conduct the defense of such Third Party Claim shall be reasonably satisfactory to the Indemnified Party, and the Indemnified Party may participate (but not control) in writing that it agrees that each Indemnitee is such defense at such Indemnified Party’s expense, and (ii) the Indemnified Party shall be entitled to indemnification hereunder in respect of such Third-Party Claim. Within 30 days of control the receipt of notice from an Indemnitee in accordance with Section 5.5(a) (or sooner, if the nature of such Third-Party Claim so requires), the Indemnifying Party shall notify each Indemnitee of its election whether to assume responsibility for such Third-Party Claim (provided that defense if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt promptly assume the defense of such notice from each Indemnitee, Third Party Claim following the Indemnifying Third Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim), and each Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Party ClaimClaim Notice. After notice from an Indemnifying Party to each Indemnitee of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection Except with the defense thereof; provided, however, that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees and the Indemnifying Party such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim without prior written notice to each such consent of the Indemnified Party, no Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each any such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Third Party Claim, each Indemnitee shall make available consent to such Indemnifying Party entry of any personnel and judgment or enter into any books, records settlement that provides for injunctive or other documents within its control nonmonetary relief affecting the Indemnified Party or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall does not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates include as an unconditional term thereof the giving by such each claimant or plaintiff to each Indemnitee such Indemnified Party of a written an irrevocable release from all liability with respect to such Third Party Claim. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim for which an Indemnified Party has sought indemnification, the Indemnified Party shall not settle, compromise, discharge, or admit any liability with respect to, such Third Party Claim without the Indemnifying Party’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party assumes the defense of a Third Party Claim and is in respect of good faith contesting such Third-Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party may reasonably recommend and that by its terms (i) solely obligates the Indemnifying Party to pay the full amount of the Losses in connection with such Third Party Claim (other than with respect to any Losses (or portion thereof) that are not required to be paid as a result of such Losses (or a portion thereof) being within the Threshold Amount) and (ii) fully releases the Indemnified Party in connection with such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents theretoThird Party Claim. In any event, the event any Indemnitee shall notify Indemnified Party and the Indemnifying Party in writing that such Indemnitee declines shall reasonably cooperate to accept ensure the proper and adequate defense of any such settlement or compromise, each such Indemnitee may continue to contest such Third-Third Party Claim free subject to this Article IX and the records of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, shall be reasonably available to the obligation of such Indemnifying Party to each such Indemnitee other with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claimdefense.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 2 contracts
Sources: Unit Purchase Agreement (Monster Worldwide, Inc.), Unit Purchase Agreement (Monster Worldwide, Inc.)
Procedure for Indemnification. (a) If an Indemnitee Except as otherwise set forth in this Section 7.4, the period during which Indemnification Claims may be made pursuant to Section 7.2(a)(i)–(ii) shall receive be the Survival Period applicable to such Indemnification Claim.
(b) An Indemnified Party shall give written notice or otherwise learn of the assertion by a person (including any governmental entity) who is not a party to this Agreement or to any of the Transaction Documents of any claim or of the commencement by any such Person of any action (a “Claim Notice”) of any Indemnification Claim by or on behalf of any Indemnified Party to Seller, reasonably promptly, but in any event if such Indemnification Claim relates to the assertion against an Indemnified Party of any Third-Party Claim”) Claim (other than with respect to which an Indemnifying a Tax Contest), within 30 Business Days after receipt by such Indemnified Party may be obligated to provide indemnification pursuant to this Agreement, each such Indemnitee shall give each such Indemnifying Party of written notice thereof promptly after becoming aware of a Legal Proceeding relating to such Third-Party Claim; provided, however, except that the failure of any Indemnitee to give notice as required by this Section 5.5 so notify Seller or Seller Parent within such time period shall not relieve each Indemnifying Party Seller and Seller Parent of its obligations under this Article Vany obligation or liability to the Indemnified Party, except to the extent that each Seller demonstrates that its ability to resolve such Indemnifying Party Indemnification Claim is materially and adversely prejudiced by such failure to give notice. Such notice shall describe the Third-Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
(b) An Indemnifying Party may elect to defend or to seek to settle or compromise, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel reasonably acceptable to each Indemnitee, any Third-Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect of such Third-Party Claim. Within 30 days of the receipt of notice from an Indemnitee in accordance with Section 5.5(a) (or sooner, if the nature of such Third-Party Claim so requires), the Indemnifying Party shall notify each Indemnitee of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim), and each Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each Indemnitee of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees and the Indemnifying Party such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii)failure.
(c) If an Indemnifying Unless Seller contests the Indemnification Claim in writing delivered to the Indemnified Party chooses to defend or to seek to compromise any Third-Party within 15 Business Days after receipt of a Claim Notice and describing in reasonable detail the basis for contesting the Indemnification Claim, each Indemnitee shall make available the Indemnified Party shall, subject to the other terms of this Article VII, be paid the amount of Losses related to such Indemnifying Party any personnel and any books, records Indemnification Claim or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party uncontested portion thereof. Any disputed Indemnification Claims shall not settle or compromise any Third-Party Claim unless be resolved either (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee of in a written release from all liability in respect of such Third-Party Claim, agreement signed by ▇▇▇▇▇ and Seller or (ii) such settlement does not provide for any by the final, non-monetary relief by any Indemnitee unless each appealable decision of a court resolving such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party disputed Indemnification Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Xperi Inc.), Asset Purchase Agreement (Xperi Inc.)
Procedure for Indemnification. (a) If an any Indemnitee shall receive receives notice or otherwise learn of the assertion of any claim or of the commencement of any claim, action, or proceeding made or brought by a person (including any governmental entity) Person who is not a party to this Agreement or any Affiliate of a Party to any of the Transaction Documents of any claim or of the commencement by any such Person of any action this Agreement (a “Third-Third Party Claim”) with respect to which indemnification is to be sought from an Indemnifying Party may be obligated to provide indemnification pursuant to this AgreementParty, each such the Indemnitee shall give each such Indemnifying Party reasonably prompt written notice thereof promptly thereof, but in any event such notice shall not be given later than 20 days after becoming aware the Indemnitee’s receipt of notice of such Third-Third Party Claim; provided, however, that the failure of any Indemnitee to give notice as required by this Section 5.5 shall not relieve each Indemnifying Party of its obligations under this Article V, except to the extent that each such Indemnifying Party is prejudiced by such failure to give notice. Such notice shall describe the Third-nature of the Third Party Claim in reasonable detail, detail and shall indicate the amount (estimated amount, if necessary) practicable, of the Indemnifiable Loss that has been or may be sustained by each such the Indemnitee.
(b) An . The Indemnifying Party may will have the right to participate in or, by giving written notice to the Indemnitee, to elect to defend or to seek to settle or compromise, assume the defense of any Third Party Claim at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel reasonably acceptable to each Indemnitee, any Third-Party Claimcounsel, provided that the counsel for the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect who shall conduct the defense of such Third-Third Party Claim shall be reasonably satisfactory to the Indemnitee. The Indemnitee shall cooperate in good faith in such defense at such Indemnitee’s own expense. If an Indemnifying Party elects not to assume the defense of any Third Party Claim. Within 30 days , the Indemnitee may compromise or settle such Third Party Claim over the objection of the receipt Indemnifying Party, which settlement or compromise shall conclusively establish the Indemnifying Party’s liability pursuant to this Agreement.
(b) If, within 20 days after an Indemnitee provides written notice to the Indemnifying Party of any Third Party Claims, the Indemnitee receives written notice from an Indemnitee in accordance with Section 5.5(a) (or sooner, if the nature Indemnifying Party that such Indemnifying Party has elected to assume the defense of such Third-Third Party Claim so requiresas provided in Section 6.03(a), the Indemnifying Party shall notify each Indemnitee of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim), and each Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each Indemnitee of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall will not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such the Indemnitee in connection with the defense thereof; provided, however, that if the defendants in any Indemnifying Party shall fail to take reasonable steps necessary to defend diligently such claim include both Third Party Claim within 20 days after receiving notice from the Indemnitee that the Indemnitee believes the Indemnifying Party and one or more Indemnitees and in has failed to take such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees steps, the Indemnitee may assume its own defense and the Indemnifying Party such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Partyliable for all reasonable expenses thereof. If any Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in Without the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense consent of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the Indemnifying Party shall be deemed not enter into any settlement of any Third Party Claim which would lead to have elected option (ii).
(c) liability or create any financial or other obligation on the part of the Indemnitee for which the Indemnitee is not entitled to indemnification hereunder. If an a firm offer is made to settle a Third Party Claim without leading to liability or the creation of a financial or other obligation on the part of the Indemnitee for which the Indemnitee is not entitled to indemnification hereunder and the Indemnifying Party chooses desires to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available accept and agree to such Indemnifying Party any personnel and any booksoffer, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) give written notice to the Indemnitee to that effect. If the Indemnitee fails to consent to such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect firm offer within 10 days after its receipt of such Third-Party Claimnotice, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that shall be relieved of its obligations to defend such Indemnitee declines to accept any such settlement or compromise, each such Third Party Claim and the Indemnitee may continue to contest or defend such Third-Third Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expenseClaim. In such event, the obligation maximum liability of the Indemnifying Party as to such Third Party Claim will be the amount of such Indemnifying Party to each such settlement offer plus reasonable costs or expenses paid or incurred by Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior up to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claimsaid notice.
(ec) Any claim by an Indemnitee on account of an Indemnifiable Loss which does not result from a Third-Third Party Claim (a “Direct Claim”) shall be asserted by giving the Indemnifying Party reasonably prompt written notice thereof, stating the nature of such claim in reasonable detail and indicating the estimated amount, if practicable, but in any event such notice shall not be given by an later than 30 days after the Indemnitee to each applicable Indemnifying Party. Each becomes aware of such Direct Claim, and the Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response respond to the claimsuch Direct Claim. If each such the Indemnifying Party does not so notify each respond within such Indemnitee during such 30-thirty 30 day period, such the Indemnifying Party shall be deemed to have refused to accept responsibility to make paymentaccepted such claim. If each such the Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in partclaim, each such the Indemnitee shall will be free to pursue such remedies as may be available seek enforcement of its right to such Party under applicable law or indemnification under this Agreement or any other agreement or arrangement between the PartiesAgreement.
(fd) In addition to any adjustments required pursuant to Section 5.4, if If the amount of any Indemnifiable Loss shallLoss, at any time subsequent to the making of an indemnity payment required by this Agreementin respect thereof, be is reduced by recovery, settlement or otherwiseotherwise under or pursuant to any insurance coverage, or pursuant to any claim, recovery, settlement or payment by, from or against any other entity, the amount of such reduction, less any costs, expenses or premiums incurred in connection therewith, therewith (together with interest thereon from the date of payment thereof at the Prime Rate) shall promptly be repaid by each the Indemnitee to each the Indemnifying Party.
(g) In . Upon making any indemnity payment, the event Indemnifying Party, to the extent of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claimsuch indemnity payment, such Indemnifying Party shall be subrogated to and shall stand in all rights of the place of such Indemnitee as to against any events or circumstances third party in respect of the Indemnifiable Loss to which the indemnity payment relates; provided, however, that (i) the Indemnifying Party shall then be in compliance with its obligations under this Agreement in respect of such Indemnifiable Loss and (ii) until the Indemnitee recovers full payment of its Indemnifiable Loss, any and all claims of the Indemnifying Party against such third party on account of said indemnity payment are hereby made subordinate in right of payment to the Indemnitee’s rights against such third party. Without limiting the generality or effect of any other provision hereof, each such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such and Indemnifying Party in a reasonable mannershall duly execute upon request all instruments reasonably necessary to evidence and perfect the above-described subrogation and subordination rights, and otherwise cooperate in the prosecution of such claims at the cost direction of the Indemnifying Party. Nothing in this Section 6.03(d) shall require any Party hereto to obtain or maintain any insurance coverage.
(e) A failure to give timely notice as provided in this Section 6.03 shall not affect the rights or obligations of any Party hereunder except if, and expense only to the extent that, as a result of such Indemnifying Partyfailure, in prosecuting any subrogated right or claimthe Party which was entitled to receive such notice was actually and materially prejudiced as a result of such failure.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Cincinnati Gas & Electric Co), Asset Purchase Agreement (Cincinnati Gas & Electric Co)
Procedure for Indemnification. (a) If an any Indemnitee shall receive receives notice or otherwise learn of the assertion by a person (including any governmental entity) who is not a party to this Agreement or to any of the Transaction Documents of any claim or of the commencement by any such Person of any action (a “Third-Party Claim”) Claim with respect to which an Indemnifying Party may be is obligated hereunder to provide indemnification pursuant to this Agreementindemnification, each such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after becoming aware of such Third-Party Claim; provided, however, that the failure of any Indemnitee to give notice as required by provided in this Section 5.5 5.05 shall not relieve each any Indemnifying Party of its obligations under this Article V, except to the extent that each such Indemnifying Party is actually prejudiced by such failure to give notice. Such notice shall describe the such Third-Party Claim in reasonable detaildetail and, and if practicable, shall indicate the estimated amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
(b) An Indemnifying Party may elect to defend or to seek to settle or compromiseParty, at such Indemnifying Party’s own expense and through counsel chosen by such Indemnifying Party’s own Party (which counsel shall be reasonably acceptable satisfactory to each the Indemnitee), may elect to defend any Third-Party Claim, provided that with such an election by the Indemnifying Party must confirm in writing that it agrees that each being deemed an admission of its obligation to indemnify the Indemnitee is entitled with respect to indemnification hereunder in respect of such Third-Party Claim. Within 30 days If an Indemnifying Party elects to defend a Third-Party Claim, then, within ten Business Days after receiving notice of the receipt of notice from an Indemnitee in accordance with Section 5.5(a) such Third-Party Claim (or sooner, if the nature of such Third-Party Claim so requires), the such Indemnifying Party shall notify each the Indemnitee of its election whether intent to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim)do so, and each such Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Party Claim. Such Indemnifying Party shall pay such Indemnitee’s reasonable out-of-pocket expenses incurred in connection with such cooperation. After notice from an Indemnifying Party to each an Indemnitee of its election to assume responsibility for the defense of a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees and the Indemnifying Party such Indemnitees Indemnitee shall have the right to employ separate one law firm as counsel and in that event the reasonable fees and expenses of to represent such separate counsel Indemnitee (but not more than one separate counsel which firm shall be reasonably satisfactory to the Indemnifying Party) if, in such Indemnitee’s reasonable judgment, either a conflict of interest between such Indemnitee and such Indemnifying Party exists in respect of such claim or there may be defenses available to such Indemnitee that are different from or in addition to those available to such Indemnifying Party, and in that event (1) the reasonable fees and expenses of one such separate counsel for all such Indemnitees shall be paid by each such Indemnifying PartyParty and (2) each of such Indemnifying Party and such Indemnitee shall have the right to conduct its own defense in respect of such claim. If any an Indemnifying Party elects not to assume responsibility for defend against a Third-Party Claim (which Claim, or fails to notify an Indemnitee of its election may be made only as provided in this Section 5.05 within the event period of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3ten Business Days described above, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to defend, compromise and settle such Third-Party Claim; provided, however, that no such Indemnitee may compromise or settle any such Third-Party Claim without the prior written notice to each such consent of the Indemnifying Party, which consent shall have not be withheld unreasonably. Notwithstanding the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemniteeforegoing, the Indemnifying Party shall be deemed to have elected option not, without the prior written consent of the Indemnitee, (ii).
(c1) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates consent to the entry of any judgment that does not include as an unconditional term thereof the giving delivery by such the claimant or plaintiff to each the Indemnitee of a written release from all liability Liability in respect of such Third-Party Claim, and Claim or (ii2) such settlement does not provide for settle or compromise any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of in any participation by such Indemnifying Party, at each such manner that may adversely affect the Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 2 contracts
Sources: Separation and Distribution Agreement (Moneygram International Inc), Separation and Distribution Agreement (Moneygram International Inc)
Procedure for Indemnification. (a) If an Indemnitee shall receive notice or otherwise learn of the assertion by a person (including including, without limitation, any governmental entityGovernmental Authority) who is not a party to this Agreement or to any of the Transaction Documents Merger Agreement of any claim or of the commencement by any such Person person of any action Action (a “"Third-Party Claim”") with respect to which an Indemnifying Party may be obligated to provide indemnification pursuant to this Agreement, each such Indemnitee shall give each such Indemnifying Party written notice (the "Indemnitee Notice") thereof promptly after becoming aware of such Third-Party Claim; provided, however, that the failure of any Indemnitee to give notice as required by provided in this Section 5.5 5.4 shall not relieve each the applicable Indemnifying Party of its obligations under this Article V, except to the extent that each such Indemnifying Party is prejudiced by such failure to give notice. Such notice Indemnitee Notice shall describe the Third-Party Claim in reasonable detail, detail and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
(b) An Indemnifying Party may elect The Indemnitee shall provide to defend or to seek to settle or compromise, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel reasonably acceptable to each Indemnitee, any Third-Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each on request all information and documentation reasonably necessary to support and verify any Losses which the Indemnitee is entitled believes give rise to a claim for indemnification hereunder and shall give the Indemnifying Party reasonable access to all books, records and personnel in respect of such Third-Party Claim. Within 30 days the possession or under the control of the Indemnitee which would have bearing on such claim.
(c) Upon receipt of notice from an the Indemnitee in accordance with Notice required by Section 5.5(a) (or sooner, if the nature of such Third-Party Claim so requires5.4(a), the Indemnifying Party shall notify each be entitled, if it so elects, to take control of the defense and investigation with respect to such claim and to employ and engage attorneys of its own choice to handle and defend the same, at the Indemnifying Party's cost, risk and expense, upon written notice to the Indemnitee of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after of receipt of such notice from each Indemnitee's notice. The Indemnifying Party shall not settle any third-party claim that is the subject of indemnification without the written consent of the Indemnitee, which consent shall not be unreasonably withheld; provided, however, that the Indemnifying Party shall be deemed may settle a claim without the Indemnitee's consent if such settlement (i) includes a complete release of the Indemnitee and (ii) does not require the Indemnitee to have elected not to assume responsibility for such Third-Party Claim), and each Indemnitee shall cooperate in make any payment or take any action or otherwise materially adversely affect the defense or settlement or compromise of such Third-Party ClaimIndemnitee. After notice from an Indemnifying Party to each an Indemnitee of its election to assume responsibility for the defense of a Third-Party Claim, such Indemnifying Party shall will not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, howeverthat, that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees and the such Indemnifying Party exists in respect of such claim, such Indemnitees shall will have the right to employ separate counsel reasonably satisfactory to the Indemnifying Party to represent such Indemnitees, and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Partycounsel) shall will be paid by each such Indemnifying Party. If any Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii).
(cd) If an Indemnifying Party chooses elects to defend or to seek to compromise any Third-Party Claim, each the appropriate Indemnitee shall make available to such (x) cooperate in all reasonable respects with the Indemnifying Party in connection with such defense and (y) not admit any personnel and any booksliability with respect to, records or other documents within its control settle, compromise or which it otherwise has the ability to make available that are necessary or appropriate for discharge, such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless without the Indemnifying Party's prior written consent.
(ie) such settlement or compromise contemplates as an unconditional term thereof If the giving by such claimant or plaintiff Indemnifying Party shall decline to each Indemnitee assume the defense of a written release from all liability in respect of any such Third-Party Claim, and (ii) or shall fail to notify the Indemnitee that it will defend such settlement does not provide for any non-monetary relief by any claim within 30 days after receipt of the Indemnitee unless each such Indemnitee consents thereto. In Notice, the event any Indemnitee shall notify defend against such claim (provided that the Indemnitee shall not settle such claim without the consent of the Indemnifying Party). The expenses of all proceedings, contests or lawsuits in respect of such claims shall be borne by the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, but only if the obligation of such Indemnifying Party is responsible pursuant to each such this Article V to indemnify the Indemnitee with in respect to such Third-Party Claim shall be equal to (i) of the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in with respect of to which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
(g) With respect to any Third-Party Claim for which the Indemnifying Party assumes responsibility for defense, the Indemnifying Party shall inform the Indemnitee, upon the reasonable written request of the Indemnitee, of the status of efforts to resolve such Third-Party Claim. With respect to any Third- Party Claim for which the Indemnifying Party does not assume such responsibility, the Indemnitee shall inform the Indemnifying Party, upon the reasonable written request of the Indemnifying Party, of the status of efforts to resolve such Third-Party Claim.
Appears in 2 contracts
Sources: Merger Agreement (Equity Residential Properties Trust), Merger Agreement (Equity Residential Properties Trust)
Procedure for Indemnification. (a) If 5.4.1 Except as may be set forth in any other Transaction Agreement, if an Indemnitee shall receive notice or otherwise learn of the assertion by a person (including any governmental entity) Person who is not a party to this Agreement or to any of the Transaction Documents Agreements of any claim or of the commencement by any such Person of any action Action (a “"Third-Party Claim”") with respect to which an Indemnifying Party may be obligated to provide indemnification pursuant to this Agreement, each such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after becoming aware of such Third-Party Claim; provided, however, that the failure of any Indemnitee to give notice as required by this Section 5.5 5.4 shall not relieve each the Indemnifying Party of its obligations under this Article V, except to the extent that each such Indemnifying Party is prejudiced by such failure to give notice. Such notice shall describe the Third-Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
(b) 5.4.2 An Indemnifying Party may elect to defend or to seek to settle or compromise, at such Indemnifying Party’s 's own expense and by such Indemnifying Party’s 's own counsel reasonably acceptable to each Indemniteecounsel, any Third-Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each the Indemnitee is entitled to indemnification hereunder in respect of such Third-Party Claim. Within 30 days of after the receipt of notice from an Indemnitee in accordance with Section 5.5(a) 5.4.1 hereof (or sooner, if the nature of such Third-Party Claim so requires), the Indemnifying Party shall notify each the Indemnitee of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each the Indemnitee of its election within 30 days after receipt of such notice from each the Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Third- Party Claim), and each such Indemnitee shall cooperate in the defense or defense, settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each an Indemnitee of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, that if the defendants or parties against which relief is sought in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ ' reasonable judgment there exists a conflict of interest between such Indemnitees and the such Indemnifying Party exists in respect of such claim, such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any an Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.1 or 5.2 or 5.3hereof, as the case may be), each ) such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim Claim. Notwithstanding the foregoing, an Indemnitee may not settle or compromise any claim without prior written notice to each such the Indemnifying Party, which shall have the option within fifteen ten days following the receipt of such notice (i) to reject disapprove the settlement and assume all past and future responsibility for the claim, including reimbursing each the Indemnitee for prior expenditures in connection with the claim, or (ii) to reject disapprove the settlement and continue to refrain from participation in the defense of the claim, in which event each such the Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each the Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such the Indemnifying Party’s 's right to contest each the Indemnitee’s 's right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such the Indemnifying Party makes no response to such written notice from an the Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii).
(c) 5.4.3 If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each the Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Partydefense or compromise.
(d) 5.4.4 Notwithstanding anything else in this Section 5.5 5.4 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each the Indemnitee of a written release from all liability in respect of such Third-Party Claim, Claim (and (ii) provided further that such settlement does may not provide for any non-monetary relief by Indemnitee without the written consent of Indemnitee) and unless such settlement or compromise does not involve any Indemnitee unless each such Indemnitee consents theretonew or additional contractual or other burdens on the Indemnitee. In the event any the Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim Claim, free of any participation by such Indemnifying Party, at each such Indemnitee’s 's sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such the offer of settlement to settle or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), ) plus (ii) the lesser of (Aa) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (Bb) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s 's continuing to pursue such Third-Party Claim.
(e) 5.4.5 Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an the Indemnitee to each the applicable Indemnifying Party. Each such Such Indemnifying Party shall have a period of 30 15 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claimrespond thereto. If each such Indemnifying Party does not so notify each respond within such Indemnitee during such 3015-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 3015-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party party under applicable law or under this Agreement or any other agreement or arrangement between the PartiesAgreement.
(f) 5.4.6 In addition to any adjustments required pursuant to Section 5.45.3 hereof, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each the Indemnitee to each the Indemnifying Party.
(g) 5.4.7 In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 2 contracts
Sources: Plan of Reorganization and Distribution Agreement (WHG Resorts & Casinos Inc), Plan of Reorganization and Distribution Agreement (WMS Industries Inc /De/)
Procedure for Indemnification. (a) If Except as may be set forth in a Related Agreement, if an Indemnitee Indemnified Person shall receive notice or otherwise learn of the assertion by a person Person (including including, without limitation, any governmental entity) who is not a party to this Agreement or to any of the Transaction Documents Related Agreements of any claim or of the commencement by any such Person or its Affiliate of any action (a “Third-Party Claim”) Action with respect to which an Indemnifying Party may be obligated to provide indemnification pursuant to this AgreementAgreement (a "Third-Party Claim"), each such Indemnitee Indemnified Person ----------------- shall give each such Indemnifying Party written notice thereof promptly after becoming aware of such Third-Party Claim; provided, however, that the failure of any Indemnitee -------- Indemnified Person to give notice as required by this Section 5.5 5.04 shall not relieve each the Indemnifying Party of its obligations under this Article V, except to the extent that each such Indemnifying Party is prejudiced by such failure to give notice. Such notice shall describe the Third-Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such IndemniteeIndemnified Person.
(b) An Indemnifying Party may elect to defend or to seek to settle or compromise, at such Indemnifying Party’s 's own expense and by such Indemnifying Party’s 's own counsel reasonably acceptable to each Indemniteecounsel, any Third-Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee the Indemnified Person is entitled to indemnification hereunder in respect of such Third-Party Claim. Within 30 days of the receipt of notice from an Indemnitee Indemnified Person in accordance with Section 5.5(a5.04(a) (or sooner, if the nature of such Third-Party Claim so requires), the Indemnifying Party shall notify each Indemnitee the Indemnified Person of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee the Indemnified Person of its election within 30 days after receipt of such notice from each Indemniteethe Indemnified Person, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim), and each Indemnitee such Indemnified Person shall cooperate in the defense or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each Indemnitee an Indemnified Person of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee Indemnified Person under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee Indemnified Person in connection with the defense thereof; provided, however, that if the defendants in any -------- such claim include both the Indemnifying Party and one or more Indemnitees Indemnified Persons and in such Indemnitees’ Indemnified Persons' reasonable judgment there exists a conflict of interest between such Indemnitees Indemnified Persons and the such Indemnifying Party exists in respect of such Indemnitees claim, such Indemnified Persons shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any an Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 5.01 or 5.35.02, as the case may be), each ) such Indemnitee Indemnified Person may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim Claim. Notwithstanding the foregoing, an Indemnified Person may not settle or compromise any claim without prior written notice to each such the Indemnifying Party, which shall have the option within fifteen ten days following the receipt of such notice (i) to reject disapprove the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee the Indemnified Person for prior expenditures in connection with the claim, or (ii) to reject disapprove the settlement and continue to refrain from participation in the defense of the claim, in which event each such the Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee the Indemnified Person elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such the Indemnifying Party’s 's right to contest each Indemnitee’s the Indemnified Person's right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such the Indemnifying Party makes no response to such written notice from an Indemniteethe Indemnity, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee the Indemnified Person shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee the Indemnified Person to each the applicable Indemnifying Party. Each such Such Indemnifying Party shall have a period of 30 15 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claimrespond thereto. If each such Indemnifying Party does not so notify each respond within such Indemnitee during such 3015-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 3015-day period or rejects such claim in whole or in part, each such Indemnitee Indemnified Person shall be free to pursue such remedies as may be available to such Party party under applicable law or under this Agreement or any other agreement or arrangement between the PartiesAgreement.
(fe) In addition to any adjustments required pursuant to Section 5.45.03, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee the Indemnified Person to each the Indemnifying Party.
(gf) In the event of payment by an Indemnifying Party to any Indemnitee Indemnified Person in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee Indemnified Person as to any events or circumstances in respect of which such Indemnitee Indemnified Person may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party ClaimClaim or against any other party that may be liable. Such Indemnitee Indemnified Person shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 2 contracts
Sources: Distribution Agreement (Choice Hotels International Inc), Distribution Agreement (Choice Hotels International Inc/)
Procedure for Indemnification. (a) If an Indemnitee shall receive notice or otherwise learn of the assertion by a person (including any governmental entity) who is not a party to of this Agreement or to any of the Transaction Documents of any claim or of the commencement by any such Person person of any action Action (a “Third-"Third Party Claim”") with respect to which an Indemnifying Party is or may be obligated to provide indemnification pursuant to this Agreementmake an Indemnity Payment, each such Indemnitee shall give each such Indemnifying Party written prompt notice thereof promptly after becoming aware of such Third-Third Party Claim, specifying in reasonable detail the nature of such Third Party Claim and the amount or estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim); provided, however, that the failure of any Indemnitee to give notice as required by provided in this Section 5.5 4.03 shall not relieve each the related Indemnifying Party of its obligations under this Article VIV, except to the extent that each such Indemnifying Party is actually prejudiced by such failure to give notice. Such notice shall describe the Third-Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
(b) An Indemnifying Party may elect to defend or to seek to settle or compromisedefend, at such Indemnifying Party’s 's own expense and by such Indemnifying Party’s 's own counsel reasonably acceptable to each Indemniteecounsel, any Third-Third Party Claim. If an Indemnifying Party elects to defend a Third Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect shall, within 10 days of notice of such Third-Third Party Claim. Within 30 days of the receipt of notice from an Indemnitee in accordance with Section 5.5(a) Claim (or sooner, if the nature of such Third-Third Party Claim so requires), notify the Indemnifying Party shall notify each related Indemnitee of its election whether intent to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim)do so, and each such Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Third Party Claim. Such Indemnifying Party shall pay such Indemnitee's actual out-of-pocket expenses (other than officers' or employees' salaries) reasonably incurred in connection with such cooperation. After notice from an Indemnifying Party to each an Indemnitee of its election to assume responsibility for the defense of a Third-Third Party Claim, such an Indemnifying Party shall not be liable to each such Indemnitee under this Article V IV for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees and the Indemnifying Party such Indemnitees Indemnitee shall have the right to employ separate counsel to represent such Indemnitee if, in such Indemnitee's reasonable judgment, a conflict of interest between such Indemnitee and such Indemnifying Party exists with respect to such claim, and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. Except as so provided, if an Indemnitee desires to participate in the defense of a Third Party Claim, it may do so but it shall not control the defense and such participation shall be at its sole cost and expense. If any an Indemnifying Party elects not to assume responsibility for defend against a Third-Third Party Claim (which Claim, or fails to notify an Indemnitee of its election may be made only as provided in the event of a good faith dispute that a claim was inappropriately tendered under this Section 5.2 or 5.34.03, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to defend, compromise and settle such Third Party Claim; provided, however, that no such Indemnitee may compromise or settle any such Third-Third Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount and except by payment of monetary damages or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlementother money payments. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the No Indemnifying Party shall be deemed consent to have elected option (ii)entry of any judgment or enter into any compromise or settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnitee of a release from all liability in respect to such Third Party Claim.
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claimclaim, each the Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within defense (the reasonable discretion cost of each such copying thereof to be paid by the Indemnifying Party).
(d) Notwithstanding anything else in this Section 5.5 to the contrary4.03, if an offer of settlement or compromise for non-monetary damages is received by an Indemnifying Party shall not with respect to a Third Party Claim and such Indemnifying Party notifies the related Indemnitee in writing of such Indemnifying Party's willingness to settle or compromise any Third-such Third Party Claim unless (i) on the basis set forth in such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party Claim, notice and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Third Party Claim Claim, free of any participation by such Indemnifying Party, at each such Indemnitee’s 's sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Upon any final determination of a Third Party Claim pursuant to this Section 4.03, except as provided by Section 4.03(d), the Indemnifying Party shall pay promptly on behalf of the Indemnitee, or to the Indemnitee in reimbursement of any amount therefore required to be paid by it, the amount so determined. Upon the payment in full by the Indemnifying Party of any such amount, the Indemnifying Party shall be subrogated to the rights of such Indemnitee, to the extent not waived in settlement, against the persons who made such Third Party Claim with respect to the subject matter of such claim.
(f) Notwithstanding the foregoing provisions of this Section 4.03, there may be Third Party Claims which reasonably could result in both IGC and ACPT being liable to the other under indemnification provisions of this Agreement. In any such events, the parties shall endeavor, acting reasonably and in good faith, to agree upon a manner of conducting the defense of or settlement of the Third Party Claim with a view to minimizing the legal expense and associated costs that might otherwise be incurred by the parties, including the use of the same legal counsel for the defense of such claim.
(g) Except to the extent expressly provided otherwise in this Section 4.03, the indemnification provided for by this Section 4.03 shall not inure to the benefit of any third party or parties and shall not relieve any insurer who would otherwise be obligated to pay any claim of the responsibility with respect thereto or, solely by virtue of the indemnification provisions hereof, provide any subrogation rights with respect thereto.
(h) Any claim on account of an Indemnifiable Loss which does not result from a Third-Third Party Claim shall be asserted by written notice given by an the related Indemnitee to each applicable the related Indemnifying Party. Each such Such Indemnifying Party shall have a period of 30 sixty (60) days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claimrespond thereto. If each such Indemnifying Party does not so notify each respond within such Indemnitee during such 30sixty-day period, such Indemnifying Party shall be deemed to have refused to accept accepted responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee payment and shall be free have no further right to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between contest the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount validity of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 2 contracts
Sources: Restructuring Agreement (American Community Properties Trust), Restructuring Agreement (American Community Properties Trust)
Procedure for Indemnification. (a) If an Indemnitee Indemnified Person shall receive written notice or otherwise learn of the assertion by a person Person (including including, without limitation, any governmental entityGovernmental Authority) who is not a party to this Agreement or to any of the Transaction Documents Related Agreements of any claim or of the commencement by any such Person of any action (a “Third-Party Claim”) Action with respect to which an Indemnifying Party may be obligated to provide indemnification pursuant to this AgreementAgreement (a "THIRD-PARTY CLAIM"), each such Indemnitee Indemnified Person shall give each such the Indemnifying Party written notice thereof promptly after becoming aware of such Third-Party Claim; provided, howeverPROVIDED, that the failure of any Indemnitee Indemnified Person to give notice as required by this Section 5.5 5.04 shall not relieve each the Indemnifying Party of its obligations under this Article V, except to the extent that each such Indemnifying Party is materially prejudiced by such failure to give notice. Such notice shall describe the Third-Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been claimed against or may be sustained by each such IndemniteeIndemnified Person.
(b) An Indemnifying Party may elect to defend or to seek to settle or compromise, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel reasonably acceptable to each Indemnitee, any Third-Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect of such Third-Party Claim. Within 30 15 days of the receipt of notice from an Indemnitee Indemnified Person in accordance with Section 5.5(a5.04(a) (or sooner, if the nature of such Third-Party Claim so requires), the Indemnifying Party shall notify each Indemnitee the Indemnified Person of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee the Indemnified Person of its election within 30 15 days after receipt of such notice from each Indemniteethe Indemnified Person, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim). An election not to assume responsibility for such Third-Party Claim may only be made in the event of a good faith dispute that a Third-Party Claim is not covered as an Indemnifiable Loss under the grounds specified in Section 5.01 or 5.02, as the case may be. Subject to Section 5.04(e) hereof, an Indemnifying Party may elect to defend or to seek to settle or compromise, at such Indemnifying Party's own expense and each Indemnitee by counsel reasonably satisfactory to the Indemnified Person, any Third-Party Claim, PROVIDED that (i) the Indemnifying Party must confirm in writing that it agrees that the Indemnified Person is entitled to indemnification hereunder in respect of such Third-Party Claim; and (ii) no compromise or settlement shall be made without the prior written consent of the Indemnified Person, which consent shall not be reasonably withheld.
(c) In the event that the Indemnifying Party elects to assume responsibility for the Third-Party Claim, pursuant to Section 5.04(b) above, (i) the Indemnified Person shall cooperate in the defense or settlement or compromise of such Third-Party Claim, including making available to the Indemnifying Party any personnel and any books, records or other documents within the Indemnified Person's control or which it otherwise has the ability to make available that are necessary or appropriate for the defense of the Third-Party Claim; (ii) the Indemnifying Party shall keep the Indemnified Person reasonably informed regarding the strategy, status and progress of the defense of the Third-Party claim; and (iii) the Indemnifying Party shall consider, in good faith, the opinions and suggestions of the Indemnified Person with respect to the Third-Party Claim. After notice from an Indemnifying Party to each Indemnitee an Indemnified Person of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee Indemnified Person under this Article V for any legal or other costs or expenses (except costs or expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee Indemnified Person in connection with the defense thereof; provided, however, that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees Indemnified Persons and in such Indemnitees’ Indemnified Persons' reasonable judgment there exists a conflict of interest between such Indemnitees Indemnified Persons and the such Indemnifying Party exists in respect of such Indemnitees claim, such Indemnified Persons shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. .
(d) If any an Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3, as the case may be), each such Indemnitee Indemnified Person may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim Claim. Notwithstanding the foregoing, an Indemnified Person may not settle or compromise any claim without prior written notice to each such the Indemnifying Party, which shall have the option within fifteen ten days following the receipt of such notice (i) to reject disapprove the settlement settlement, and to then assume all past and future responsibility for the claim, including immediately reimbursing each Indemnitee the Indemnified Person for prior expenditures in connection with the claim, or ; (ii) to reject disapprove the settlement and continue to refrain from participation in the defense of the claim, in which event each such the Indemnified Person may, in its sole discretion, proceed with the settlement and the Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or settlement; (iii) to approve and pay the amount of the settlement, reserving each such the Indemnifying Party’s 's right to contest each Indemnitee’s the Indemnified Person's right to indemnity, ; or (iv) to approve and agree to pay the settlement. In the event such the Indemnifying Party makes no response to such written notice from an Indemniteenotice, the Indemnifying Party shall be deemed to have elected option (ii). When the Indemnifying Party chooses or is deemed to have chosen option (ii) or (iii), the issue of whether the Indemnified Person has a right to indemnity under this Article V shall be resolved by arbitration pursuant to the provisions of Section 9.14 hereof. If the Indemnifying Party does not prevail at such arbitration, the Indemnifying Party shall promptly reimburse the Indemnified Person for all Indemnifiable Losses, plus interest on such amounts at the lower of (i) 10% or (ii) the highest legal interest rate, accruing from the date of payment by the Indemnified Person.
(ce) If Notwithstanding the foregoing, if an Indemnified Person reasonably and in good faith determines that (i) the Indemnifying Party chooses is not financially capable to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any a Third-Party Claim unless (i) such and to provide full indemnification with respect to any settlement thereof or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, 's attorney is not adequately representing the obligation of such Indemnifying Party to each such Indemnitee Indemnified Person's interests with respect to such Third-Party Claim shall be equal to (i) Claim, the costs and expenses of each such Indemnitee prior Indemnified Person may, by notice to the date Indemnifying Party, assume the exclusive right to defend, compromise or settle such Third-Party Claim and the Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to shall remain responsible for, and be bound by the extent such costs and expenses are otherwise indemnifiable hereunder)resolution of, plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(ef) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee the Indemnified Person to each the applicable Indemnifying Party. Each such Such Indemnifying Party shall have a period of 30 15 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claimrespond thereto. If each such Indemnifying Party does not so notify each respond within such Indemnitee during such 3015-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 3015-day period or rejects such claim in whole or in part, each such Indemnitee Indemnified Person shall be free to pursue such remedies as may be available to such Party party under applicable law or under this Agreement or any other agreement or arrangement between the PartiesAgreement.
(fg) In addition to any adjustments required pursuant to Section 5.45.03, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee the Indemnified Person to each the Indemnifying Party.
(gh) In the event of payment by an Indemnifying Party to any Indemnitee Indemnified Person in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee Indemnified Person as to any events or circumstances in respect of which such Indemnitee Indemnified Person may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party ClaimClaim or against any other party that may be liable. Such Indemnitee Indemnified Person shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
(i) For so long as Surviving Corporation (as defined in the Merger Agreement) is required to provide indemnification to any of the Indemnified Persons (as defined in the Merger Agreement), Lakes shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make any Restricted Payment. If Lakes is unable, within 15 days of request, to repay in full any claim made for indemnification by Company or any of its Affiliates pursuant to this Agreement or the Merger Agreement, then for so long as any such claim or any other claim for indemnification made by Company or any of its Affiliates remains unpaid, Lakes shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty or otherwise become directly or indirectly liable with respect to any indebtedness.
(j) Prior to the Distribution Date, Company and Lakes shall enter into a Collateral Trust Agreement and a Pledge and Security Agreement. Company is hereby entitled to all the rights and benefits under those agreements in order to secure Lakes' indemnification obligations under this Agreement, the Related Agreements and the Merger Agreement.
Appears in 1 contract
Sources: Distribution Agreement (Park Place Entertainment Corp)
Procedure for Indemnification. (a) If Except as may be set forth in a Related Agreement, if an Indemnitee shall receive notice or otherwise learn of the assertion by a person Person (including including, without limitation, any governmental entity) who is not a party to this Agreement or to any of the Transaction Documents Related Agreements of any claim or of the commencement by any such Person of any action Action (a “"Third-Party Claim”") with respect to which an Indemnifying Party may be obligated to provide indemnification pursuant to this Agreement, each such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after becoming aware of such Third-Party Claim; provided, however, PROVIDED that the failure of any Indemnitee to give notice as required by this Section 5.5 5.04 shall not relieve each the Indemnifying Party of its obligations under this Article VIV, except to the extent that each such Indemnifying Party is prejudiced by such failure to give notice. Such notice shall describe the Third-Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
(b) An Indemnifying Party may elect to defend or to seek to settle or compromise, at such Indemnifying Party’s 's own expense and by such Indemnifying Party’s 's own counsel reasonably acceptable to each Indemniteecounsel, any Third-Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each the Indemnitee is entitled to indemnification hereunder in respect of such Third-Party Claim. Within 30 days of the receipt of notice from an Indemnitee in accordance with Section 5.5(a5.04(a) (or sooner, if the nature of such Third-Party Claim so requires), the Indemnifying Party shall notify each the Indemnitee of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each the Indemnitee of its election within 30 days after receipt of such notice from each the Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim), and each such Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each an Indemnitee of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V IV for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, that PROVIDED THAT if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ ' reasonable judgment there exists a conflict of interest between such Indemnitees and the such Indemnifying Party exists in respect of such claim, such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any an Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 5.01 or 5.35.02, as the case may be), each such the Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim Claim. Notwithstanding the foregoing, an Indemnitee may not settle or compromise any claim without prior written notice to each such the Indemnifying Party, which shall have the option within fifteen ten days following the receipt of such notice (i) to reject disapprove the settlement and assume all past and future responsibility for the claim, including reimbursing each the Indemnitee for prior expenditures in connection with the claim, or (ii) to reject disapprove the settlement and continue to refrain from participation in the defense of the claim, in which event each such the Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each the Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such the Indemnifying Party’s 's right to contest each the Indemnitee’s 's right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such the Indemnifying Party makes no response to such written notice from an the Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each the Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 5.04 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each the Indemnitee of a written release from all liability in respect of such Third-Party Claim, Claim (and (ii) provided further that such settlement does may not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents theretowithout the written consent of Indemnitee). In the event any the Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim Claim, free of any participation by such Indemnifying Party, at each such Indemnitee’s 's sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such the offer of settlement to settle or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus ) PLUS (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s 's continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an the Indemnitee to each the applicable Indemnifying Party. Each such Such Indemnifying Party shall have a period of 30 15 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claimrespond thereto. If each such Indemnifying Party does not so notify each respond within such Indemnitee during such 3015-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 3015-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party party under applicable law or under this Agreement or any other agreement or arrangement between the PartiesAgreement.
(f) In addition to any adjustments required pursuant to Section 5.45.03, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each the Indemnitee to each the Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 1 contract
Procedure for Indemnification. If a party entitled to indemnification pursuant to Section 11 (athe "Indemnitee") If an Indemnitee shall receive receives notice or otherwise learn of the assertion by a person (including any governmental entity) who is not a party to this Agreement or to any of the Transaction Documents of any claim or of the commencement by any such Person person of any action or proceeding (a “Third-"Third Party Claim”") with respect to which an another party to this Agreement (the "Indemnifying Party may be Party") is obligated to provide indemnification pursuant to this Agreementindemnification, each such the Indemnitee shall give each such the Indemnifying Party written notice thereof promptly within one hundred twenty (120) days after becoming aware of such Third-Third Party Claim; provided, however, that the failure of unless earlier notice is required in order to timely file any Indemnitee to give notice as required by this Section 5.5 shall not relieve each Indemnifying answer in such pending Third Party of its obligations under this Article V, except to the extent that each such Indemnifying Party is prejudiced by such failure to give noticeClaim. Such notice shall describe the Third-Third Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such the Indemnitee.
(b) An . The Indemnifying Party may elect to defend compromise or to seek to settle or compromisedefend, at such Indemnifying Party’s 's own expense and by such Indemnifying Party’s 's own counsel reasonably acceptable to each Indemniteecounsel, any Third-Third Party Claim. If the Indemnifying Party elects to compromise or defend such Third Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect of such Third-Party Claim. Within 30 shall, within thirty (30) days of the receipt of notice from an Indemnitee in accordance with Section 5.5(a) (or sooner, sooner if the nature of such Third-the Third Party Claim so requires), ) notify the Indemnifying Party shall notify each Indemnitee of its election whether intent to assume responsibility for such Third-Party Claim (provided that if do so, and the Indemnitee shall cooperate, at the expense of the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each IndemniteeParty, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim), and each Indemnitee shall cooperate in the compromise of, or defense or settlement or compromise of against, such Third-Third Party Claim. After notice from an Indemnifying Party to each Indemnitee of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by If the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees and the Indemnifying Party such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any Indemnifying Party elects not to assume responsibility for a Third-compromise or defend against the Third Party Claim (which Claim, or fails to notify the Indemnitee of its election may be made only in as herein provided, the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3, as the case may be), each such Indemnitee may pay, compromise, or defend or (subject to the following sentence) seek to compromise or settle such Third-Third Party Claim without prior written notice to waiving its claims for indemnification hereunder. In any event, the Indemnitee and the Indemnifying Party may each such Indemnifying Partyparticipate, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claimat its own expense, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of such Third Party Claim. If the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claimclaim, each the Indemnitee shall make available on a reasonable basis to such the Indemnifying Party any personnel and or any books, records records, or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within . If the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party elects to compromise or defend such Third Party Claim, no compromise or settlement thereof may be effected by the Indemnifying Party without the Indemnitee's written consent (which shall not settle or compromise any Third-Party Claim be unreasonably withheld) unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving sole relief provided is monetary damages that are paid in full by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-the Indemnifying Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such receives a release from the claimant releasing Indemnitee declines to accept from any such settlement or compromise, each such Indemnitee and all claims claimant may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such have against Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim for indemnity between the parties shall be asserted by written notice given by an the Indemnitee to each applicable the Indemnifying Party. Each such The Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 1 contract
Procedure for Indemnification. (a) If an Indemnitee shall receive notice or otherwise learn of the assertion by a person (including any governmental entity) who is not a party to this Agreement or to any of the Transaction Documents of any claim or of the commencement by any such Person person of any action Action (a “Third-"Third Party Claim”") with respect to which an Indemnifying Party is or may be obligated to provide indemnification pursuant to this Agreementmake an Indemnity Payment, each such Indemnitee shall give each such Indemnifying Party written prompt notice thereof promptly after becoming aware of such Third-Third Party ClaimClaim and the amount or estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim); providedPROVIDED, howeverHOWEVER, that the failure of any Indemnitee to give notice as required by provided in this Section 5.5 4 shall not relieve each the related Indemnifying Party of its obligations under this Article VAgreement, except to the extent that each such Indemnifying Party is actually prejudiced by such failure to give notice. Such notice shall describe the Third-Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
(b) An Indemnifying Party may elect to defend or to seek to settle or compromisedefend, at such Indemnifying Party’s 's own expense and by such Indemnifying Party’s 's own counsel reasonably acceptable to each Indemniteecounsel, any Third-Third Party Claim. If an Indemnifying Party elects to defend a Third Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect shall, within 10 days of notice of such Third-Third Party Claim. Within 30 days of the receipt of notice from an Indemnitee in accordance with Section 5.5(a) Claim (or sooner, if the nature of such Third-Third Party Claim so requires), notify the Indemnifying Party shall notify each related Indemnitee of its election whether intent to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim)do so, and each such Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Third Party Claim. Such Indemnifying Party shall pay such Indemnitee's actual out-of-pocket expenses (other than officers' or employees' salaries) reasonably incurred in connection with such cooperation as such expenses are incurred. After notice from an Indemnifying Party to each an Indemnitee of its election to assume responsibility for the defense of a Third-Third Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V Agreement for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; providedPROVIDED, howeverHOWEVER, that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees and the Indemnifying Party such Indemnitees Indemnitee shall have the right to employ separate counsel to represent such Indemnitee if, in such Indemnitee's reasonable judgment, a conflict of interest between such Indemnitee and such Indemnifying Party exists in respect of such claim, and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying PartyParty as such fees and expenses are incurred. Except as so provided, if an Indemnitee desires to participate in the defense of a Third Party Claim, it may do so but it shall not control the defense and such participation shall be at its sole cost and expense. If any an Indemnifying Party elects not to assume responsibility for defend against a Third-Third Party Claim (which Claim, or fails to notify an Indemnitee of its election may be made only as provided in the event of a good faith dispute that a claim was inappropriately tendered under this Section 5.2 or 5.34, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to defend, compromise and settle such Third Party Claim; PROVIDED, HOWEVER, that no such Indemnitee may compromise or settle any such Third-Third Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount and except by payment of monetary damages or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlementother money payments. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the No Indemnifying Party shall be deemed consent to have elected option (ii)entry of any judgment or enter into any compromise or settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnitee of a release from all liability in respect to such Third Party Claim.
(c) If an any Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claimclaim, each the Indemnitee shall make available to such Indemnifying Party any personnel and or any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within defense (the reasonable discretion cost of each such copying thereof to be paid by the Indemnifying Party).
(d) Notwithstanding anything else in Upon any final determination of a Third Party Claim pursuant to this Section 5.5 to 4, the contrary, an Indemnifying Party shall not settle pay promptly on behalf of the Indemnitee, or compromise to the Indemnitee in reimbursement of any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof amount theretofore required to be paid by it, the giving amount so determined. Upon the payment in full by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept of any such settlement or compromiseamount the Indemnifying Party shall be subrogated to the rights of such Indemnitee, each to the extent not waived in settlement, against the person who made such Indemnitee may continue to contest such Third-Third Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee subject matter of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claimclaim.
(e) Except to the extent expressly provided otherwise herein, the indemnification provided for by this Agreement shall not inure to the benefit of any third party or parties and shall not relieve any insurer who would otherwise be obligated to pay any claim or the responsibility with respect thereto or, solely by virtue of the indemnification provisions hereof, provide any subrogation rights respect thereto.
(f) Any claim on account of an Indemnifiable Loss which does not result from a Third-Third Party Claim shall be asserted by written notice given by an the related Indemnitee to each applicable the related Indemnifying Party. Each such Such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claimrespond thereto. If each such Indemnifying Party does not so notify each such Indemnitee during respond with such 30-day period, such Indemnifying Party shall be deemed to have refused to accept accepted responsibility to make paymentpayment and shall have not further right to contest the validity of such claim. If each such Indemnifying Party does not respond within such 30-day period or and rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be all available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Partylegal actions.
(g) In If the event indemnification provided for in this Agreement is unavailable or insufficient to hold harmless an Indemnitee in respect of payment any Indemnifiable Loss, then the "Indemnifying Party shall contribute to the amount paid or payable by such Indemnitee as a result of such Indemnifiable Loss, in such proportion as is appropriate to reflect the relative fault of WCGI and its Affiliates on the one hand and WC and its Affiliates on the other hand in connection with the circumstances which resulted in such Indemnifiable Loss. The amount paid or payable by an Indemnifying Party Indemnitee as a result of the Indemnifiable Loss referred to above in this subsection (g) shall be deemed to include any legal or other expenses reasonably incurred by such Indemnitee in connection with investigating or defending any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right action or claim.
Appears in 1 contract
Sources: Environmental Indemnification Agreement (Morrison Knudsen Corp//)
Procedure for Indemnification. The procedure for indemnification shall be as follows:
(a) If an Indemnitee shall receive notice or otherwise learn of the assertion by a person (including any governmental entity) who is not a party to this Agreement or to any of the Transaction Documents of any claim or of the commencement by any such Person of any action (a “Third-Party Claim”Claims. A party seeking indemnification (an "Indemnified Party") with respect shall give prompt written notice to which an Indemnifying Party may be any the party who is obligated to provide indemnification pursuant under Section 9.2 or 9.3 (an "Indemnifying Party") of the commencement or assertion of any action, proceeding, demand, or claim by a third party (collectively, a "third-party action") in respect of which such Indemnified Party shall seek indemnification hereunder. Any failure so to this Agreement, each such Indemnitee notify an Indemnifying Party shall give each not relieve such Indemnifying Party written from any liability that it may have to such Indemnified Party under this Article 9 unless the failure to give such notice thereof promptly after becoming aware materially and adversely prejudices such Indemnifying Party. The Indemnifying Party shall have the right to 40 assume control of the defense of, settle, or otherwise dispose of such Thirdthird-party action on such terms as it deems appropriate; provided, however, that:
(i) The Indemnified Party Claim; shall be entitled, at its own expense, to participate in the defense of such third-party action (provided, however, that the failure of any Indemnitee to give notice as required by this Section 5.5 shall not relieve each Indemnifying Party shall pay the attorneys' fees of its obligations under this Article V, except to the extent that each Indemnified Party if (a) the employment of separate counsel shall have been authorized in writing by any such Indemnifying Party is prejudiced by such failure to give notice. Such notice shall describe the Third-Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
(b) An Indemnifying Party may elect to defend or to seek to settle or compromise, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel reasonably acceptable to each Indemnitee, any Third-Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect of such Third-Party Claim. Within 30 days of the receipt of notice from an Indemnitee in accordance with Section 5.5(a) (or sooner, if the nature of such Third-Party Claim so requires), the Indemnifying Party shall notify each Indemnitee of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim), and each Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each Indemnitee of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; providedof such third-party action, however, that if the defendants in any such claim include both (b) the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees and the Indemnifying Party such Indemnitees shall not have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate employed counsel reasonably satisfactory to the Indemnifying PartyIndemnified Party to have charge of such third-party action, (c) the Indemnified Party shall be paid by each such Indemnifying Party. If any Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election have reasonably concluded that there may be made only in the event of a good faith dispute defenses available to such Indemnified Party that a claim was inappropriately tendered under Section 5.2 are different from or 5.3, as the case may be), each such Indemnitee may defend or (subject additional to those available to the following sentence) seek to compromise or settle such Third-Party Claim without prior written notice to each such Indemnifying Party, which or (d) the Indemnified Party's counsel shall have advised the option within fifteen days following Indemnified Party in writing, with a copy delivered to the receipt Indemnifying Party, that there is a material conflict of such notice (i) interest that could violate applicable standards of professional conduct to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or have common counsel);
(ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such The Indemnifying Party shall have no further right to contest obtain the amount or reasonableness prior written approval of the settlement if each Indemnitee elects to proceed therewithIndemnified Party before entering into or making any settlement, compromise, admission, or acknowledgment of the validity of such third-party action or any liability in respect thereof if, pursuant to or as a result of such settlement, compromise, admission, or acknowledgment, injunctive or other equitable relief would be imposed against the Indemnified Party or if, in the opinion of the Indemnified Party, such settlement, compromise, admission, or acknowledgment could have a Material Adverse Effect on its business;
(iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the No Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 consent to the contrary, an Indemnifying Party shall entry of any judgment or enter into any settlement that does not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates include as an unconditional term thereof the giving by such each claimant or plaintiff to each Indemnitee Indemnified Party of a written release from all liability in respect of such Thirdthird-party action; and
(iv) The Indemnifying Party Claimshall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement, compromise, admission, or acknowledgment of any third-party action (iia) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify as to which the Indemnifying Party in writing fails to assume the defense within a reasonable length of time or (b) to the extent the third-party action seeks an order, injunction, or other equitable relief against the Indemnified Party which, if successful, would materially adversely affect the business, operations, assets, or financial condition of the Indemnified Party; provided, however, that such Indemnitee declines to accept any such settlement or the Indemnified Party shall make no settlement, compromise, each such Indemnitee may continue admission, or acknowledgment that would give rise to contest such Third-Party Claim free liability on the part of any participation by Indemnifying Party without the prior written consent of such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, The parties hereto shall extend reasonable cooperation in connection with the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount defense of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual outthird-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required party action pursuant to Section 5.4this Article 9 and, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claimfurnish such records, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable mannerinformation, and at the cost testimony and expense of attend such Indemnifying Partyconferences, in prosecuting any subrogated right or claimdiscovery proceedings, hearings, trials, and appeals as may be reasonably requested.
Appears in 1 contract
Sources: Asset Exchange Agreement (Salem Communications Corp /De/)
Procedure for Indemnification. Seller, Purchaser, Guarantors and Level 3 shall not be liable for any Claim for indemnification under this Article 8 unless written notice of a Claim for indemnification is delivered by the person seeking indemnification (athe "Indemnitee") If an Indemnitee to the person from whom indemnification is sought (the "Indemnitor") which notice shall receive notice or otherwise learn be given prior to the expiration of the assertion by a person applicable survival period, if any, set forth in Sections 8.1 and 8.2 and shall be given promptly, but in no event more than thirty (including any governmental entity30) who is not a party to this Agreement or to any days following such Indemnitee's receipt of the Transaction Documents of any such claim or of the commencement by any such Person of any action (a “Third-Party Claim”) with respect to which an Indemnifying Party may be obligated to provide indemnification pursuant to this Agreement, each such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after becoming aware of such Third-Party Claimdemand; provided, however, that the Indemnitee's failure of any Indemnitee to give provide such notice as required by this Section 5.5 within thirty (30) days shall not relieve each Indemnifying Party of its obligations under this Article Vpreclude the Indemnitee from being indemnified for such claim or demand, except to the extent that each such Indemnifying Party is prejudiced by such the failure to give noticetimely notice results in the forfeiture of substantive defenses by the Indemnitor. Such notice All notices given pursuant to this Section shall describe set forth with reasonable specificity the Third-Party Claim basis of the Claims for indemnification and the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim or demand). In case of any claim by a third party, any suit, any claim by any Governmental Entity, or any legal, administrative or arbitration proceeding with respect to which Seller or Purchaser may have liability under the indemnity agreements contained in reasonable detailthis Article 8, the Indemnitor shall be entitled to participate therein, and, to the extent desired, to assume the defense thereof, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
(b) An Indemnifying Party may elect to defend or to seek to settle or compromise, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel reasonably acceptable to each Indemnitee, any Third-Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect of such Third-Party Claim. Within 30 days of the receipt of after notice from an Indemnitee in accordance with Section 5.5(a) (or sooner, if the nature of such Third-Party Claim so requires), the Indemnifying Party shall notify each Indemnitee of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim), and each Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each Indemnitee of its election to assume responsibility for a Third-Party Claimthe defense thereof, such Indemnifying Party shall the Indemnitor will not be liable to each such the Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such the Indemnitee in connection with the defense thereof; provided, howeverother than reasonable costs of investigation, that if unless the defendants in any Indemnitor does not actually assume the defense thereof following notice of such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees election. The Indemnitee and the Indemnifying Party such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee Indemnitor shall make available to each other and their attorneys and representatives at all reasonable times, all books and records relating to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party Claim, and (ii) will render to each other such assistance as may reasonably be requested in order to ensure proper and adequate defense of any such Claim. Neither the Indemnitee nor the Indemnitor will make any settlement does of any Claim that might give rise to liability of the other under the indemnity agreements contained in this Article 8 without the consent of the other, which consent shall not provide for be unreasonably withheld. If the Indemnitor elects to settle any non-monetary relief by any such Claim and the Indemnitee unless each refuses to consent to such Indemnitee consents thereto. In compromise or settlement, then the event any liability of the Indemnitor to the Indemnitee shall notify be limited to the Indemnifying Party amount offered by the Indemnitor in writing compromise or settlement. The Parties agree that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim future claims for indemnification pursuant to this Article 8, any Claims by Purchaser against Seller shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount net of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection recoveries directly associated with any Thirdsuch Claims, including, but not limited to, mandatory counterclaims and cross-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claimclaims.
Appears in 1 contract
Procedure for Indemnification. (a) If an Indemnitee An Indemnified Party shall receive give written notice or otherwise learn (the "CLAIM NOTICE") of any Claim for indemnification under this Article IX to the Shareholder Representative, on behalf of the assertion by a person (including any governmental entity) who is not a party to this Agreement Shareholders, or to any of the Transaction Documents Purchaser, as the case may be, reasonably promptly after the assertion against the Indemnified Party of any claim or of the commencement by any such Person of any action a third party (a “Third-"THIRD PARTY CLAIM") or, if such Claim is not in respect of a Third Party Claim”) with respect , reasonably promptly after the discovery of facts upon which the Indemnified Party intends to which an Indemnifying Party may be obligated to provide base a Claim for indemnification pursuant to this Agreement, each such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after becoming aware of such Third-Party ClaimArticle IX; provided, however, that the failure of any Indemnitee or delay to give notice so notify the Shareholder Representative or the Purchaser, as required by this Section 5.5 the case may be, shall not relieve each Indemnifying the indemnifying party of any obligation or liability that the indemnifying party may have to the Indemnified Party of its obligations under this Article V, except to the extent that each the indemnifying party demonstrates that his, her or its ability to defend or resolve such Indemnifying Party Claim is prejudiced by adversely affected thereby. Any such failure to give notice. Such notice Claim Notice shall describe the Third-Party facts and circumstances on which the asserted Claim in reasonable detail, for indemnification is based and shall indicate include the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each indemnifiable Losses (or, if such Indemniteeamount is not then determined, a good faith estimate thereof) and the basis for the determination of the amount of such Losses.
(bA) An Indemnifying Subject to the rights of or duties to any insurer or other third party having potential liability therefor, the Shareholder Representative, on behalf of the Shareholders, shall have the right, upon written notice given by the Shareholder Representative to the Purchaser Indemnified Party within 30 days after receipt by the Shareholder Representative of the notice from the Purchaser Indemnified Party of any Third Party Claim, to assume the defense or handling of such Third Party Claim, at the Shareholders' sole expense, in which case the provisions of Section 9.5(b)(ii) hereof shall govern; provided, however, that, notwithstanding the foregoing, the Purchaser may elect to defend assume the defense and handle any such Third Party Claim if it determines in good faith that the resolution of such Third Party Claim could result in an adverse impact on the business, operations, assets, liabilities (absolute, accrued, contingent or otherwise), condition (financial or otherwise) or prospects of the Purchaser, in which case the provisions of Section 9.5(c)(ii) hereof shall govern.
(B) Subject to seek the rights of or duties to settle any insurer or compromiseother third party having potential liability therefor, the Purchaser shall have the right, upon written notice given by the Purchaser to the Shareholder Representative within 30 days after receipt by the Purchaser of the notice from a Shareholder Indemnified Party of any Third Party Claim, to assume the defense or handling of such Third Party Claim, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own the Purchaser's sole expense, in which case the provisions of Section 9.5(b)(ii) hereof shall govern
(ii) The Shareholder Representative, on behalf of the Shareholders, or the Purchaser, as the case may be, shall select counsel reasonably acceptable to each Indemnitee, any Third-the Indemnified Party in connection with conducting the defense or handling of such Third Party Claim, provided that and the Indemnifying Shareholder Representative or the Purchaser, as the case may be, shall defend or handle the same in consultation with the Indemnified Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect and shall keep the Indemnified Party timely apprised of the status of such Third-Third Party Claim. Within 30 days Neither the Shareholder Representative nor the Purchaser, as the case may be, shall, without the prior written consent of the receipt Indemnified Party, agree to a settlement of notice from any Third Party Claim, unless (A) the settlement provides an Indemnitee unconditional release and discharge of the Indemnified Party and the Indemnified Party is reasonably satisfied with such discharge and release and (B) with respect to any Claim by a Purchaser Indemnified Party, the Purchaser shall not have reasonably objected to any such settlement on the ground that the circumstances surrounding the settlement could result in accordance an adverse impact on the business, operations, assets, liabilities (absolute, accrued, contingent or otherwise), condition (financial or otherwise) or prospects of the Purchaser. The Indemnified Party shall cooperate with Section 5.5(athe Shareholder Representative or the Purchaser, as the case may be, and shall be entitled to participate in the defense or handling of such Third Party Claim with its own counsel and at its own expense.
(c) (or sooner, if i) (A) If (x) the nature of such Third-Party Claim so requires), the Indemnifying Party shall notify each Indemnitee of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party Shareholder Representative does not so notify each Indemnitee of its election give written notice to the Purchaser Indemnified Party pursuant to Section 9.5(b)(i)(A) within 30 days after receipt of such the notice from each Indemnitee, the Indemnifying Purchaser Indemnified Party shall be deemed to have elected not of any Third Party Claim of the Shareholder Representative's election to assume responsibility for such Third-Party Claim), and each Indemnitee shall cooperate in the defense or settlement or compromise handling of such Third-Third Party Claim. After notice from an Indemnifying Party to each Indemnitee of its election Claim or (y) the Purchaser elects to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees and the Indemnifying Party such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses handling of such separate counsel (but not more than one separate counsel reasonably satisfactory Third Party Claim pursuant to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only proviso in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3, as the case may be9.5(b)(i)(A), each such Indemnitee may defend or (subject to the following sentenceprovisions of Section 9.5(c)(ii) seek to compromise or settle such Third-Party Claim without prior written notice to each such Indemnifying Party, which hereof shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii)govern.
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 1 contract
Procedure for Indemnification. A Party which intends to seek indemnification under this Section 10 (asuch Party hereinafter referred to as the “Indemnitee”) If an Indemnitee shall receive notice or otherwise learn of the assertion for a Loss in respect to a Claim by a person Third Party (including any governmental entity) who is not a party to this Agreement or to any of the Transaction Documents of any claim or of the commencement by any such Person of any action (a “Third-Third Party Claim”) with respect to which an Indemnifying Party may be obligated to provide indemnification pursuant to this Agreement), each such Indemnitee shall promptly give each such Indemnifying Party written notice thereof promptly to the Party from whom indemnification is sought (such other Party hereinafter referred to as the “Indemnitor”) within a reasonable period of time after becoming aware the assertion of such Third-Third Party Claim; provided, however, that the failure to provide written notice of any Indemnitee to give notice as required by this Section 5.5 such Third Party Claim within a reasonable period of time shall not relieve each Indemnifying Party Indemnitor of any of its obligations under this Article Vhereunder, except to the extent that each such Indemnifying Party Indemnitor is materially prejudiced by such failure to give noticefailure. Such notice shall describe Indemnitor may assume the Third-Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) complete control of the Indemnifiable Loss that has been defense, compromise or may be sustained by each such Indemnitee.
(b) An Indemnifying Party may elect to defend or to seek to settle or compromise, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel reasonably acceptable to each Indemnitee, settlement of any Third-Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect of such Third-Party Claim. Within 30 days of the receipt of notice from an Indemnitee in accordance with Section 5.5(a) (or sooner, if the nature of such Third-Party Claim so requires), the Indemnifying Party shall notify each Indemnitee of its election whether to assume responsibility for such Third-Third Party Claim (provided that if any settlement of any Third Party Claim that: (i) subjects Indemnitee to any non-indemnified liability; or (ii) admits fault or wrongdoing on the Indemnifying Party does not so notify each part of Indemnitee of its election within 30 days after receipt shall require the prior written consent of such notice from each Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for provided such Third-Party Claim), and each Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each Indemnitee of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party consent shall not be liable unreasonably withheld), including, at its own expense, employment of legal counsel, and at any time thereafter Indemnitor shall be entitled to each exercise, on behalf of Indemnitee, any rights which may mitigate the extent or amount of such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereofThird Party Claim; provided, however, that if Indemnitor shall have exercised its right to assume control of such Third Party Claim, Indemnitee (x) may, in its sole discretion and at its own expense, employ legal counsel to represent it (in addition to the defendants legal counsel employed by Indemnitor) in any such claim include both the Indemnifying Party and one or more Indemnitees matter, and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees and the Indemnifying Party such Indemnitees shall have the right to employ separate event legal counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) selected by Indemnitee shall be paid by each required to confer and cooperate with the counsel of Indemnitor in such Indemnifying Party. If any Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3defense, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claimpurpose of informing and sharing information with Indemnitor; (y) shall, including reimbursing each Indemnitee for prior expenditures in connection with the claimat Indemnitor’s own expense, or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel Indemnitor those employees, officers, contractors, and any booksdirectors of Indemnitee whose assistance, records testimony or other documents within its control or which it otherwise has the ability to make available that are presence is necessary or appropriate for to assist Indemnitor in evaluating and in defending any such defenseThird Party Claim; provided, within however, that any such access shall be conducted in such a manner as not to interfere unreasonably with the reasonable discretion operations of each such Indemnifying Party.
the businesses of Indemnitee; and (dz) Notwithstanding anything else shall otherwise fully cooperate with Indemnitor and its legal counsel in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect investigation and defense of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Third Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 1 contract
Sources: Exclusive License Agreement (Chelsea Therapeutics International, Ltd.)
Procedure for Indemnification. When Acquisition shall be entitled to assert a claim for indemnification pursuant to Section 12.2, the provisions of this Section 12.4 shall govern the procedure for indemnification.
(a) If an Indemnitee Acquisition, when entitled to assert a claim for indemnification under this Agreement, shall receive give prompt written notice to the Majority Shareholders of any claim or otherwise learn event known to it which does or may give rise to a claim for indemnification hereunder by Acquisition against the Majority Shareholders; provided that the failure of Acquisition to give notice as provided in this Section 12.4 shall not relieve Acquisition of the assertion Majority Shareholders' obligations under this Article XII. In the case of any claim for indemnification hereunder arising out of a claim, action, suit or proceeding brought by a any person (including any governmental entity) who is not a party to this Agreement or to any of the Transaction Documents of any claim or of the commencement by any such Person of any action (a “"Third-Party Claim”) "), Acquisition shall also give the Majority Shareholders copies of any written claims, process or legal pleadings with respect to which an Indemnifying Party may be obligated to provide indemnification pursuant to this Agreement, each such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after becoming aware of such Third-Party Claim; provided, however, that the failure of any Indemnitee to give notice as required Claim promptly after such documents are received by this Section 5.5 shall not relieve each Indemnifying Party of its obligations under this Article V, except to the extent that each such Indemnifying Party is prejudiced by such failure to give notice. Such notice shall describe the Third-Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such IndemniteeAcquisition.
(b) An Indemnifying Party The Majority Shareholders may elect to defend compromise or to seek to settle or compromisedefend, at such Indemnifying Party’s the Majority Shareholders' own expense and by such Indemnifying Party’s the Majority Shareholders' own counsel reasonably acceptable to each Indemniteecounsel, any Third-Party Claim, provided that . If the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled Majority Shareholders elect to indemnification hereunder in respect of such compromise or defend a Third-Party Claim. Within 30 , they shall, within thirty (30) days of the its receipt of the notice from an Indemnitee in accordance with Section 5.5(aprovided pursuant to subsection 12.4(a) hereof (or sooner, if the nature of such Third-Party Claim so requires), the Indemnifying Party shall notify each Indemnitee Acquisition of its election whether their intent to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim)do so, and each Indemnitee Acquisition shall reasonably cooperate in the compromise of, or defense or settlement or compromise of against, such Third-Party Claim. The Majority Shareholders shall pay Acquisition's actual out-of-pocket expenses incurred in connection with such cooperation. After notice from an Indemnifying Party the Majority Shareholders to each Indemnitee Acquisition of its their election to assume responsibility for the defense of a Third-Party Claim, such Indemnifying Party the Majority Shareholders shall not be liable to each such Indemnitee Acquisition under this Article V XII for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee Acquisition in connection with the defense thereof; provided, however, provided that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees and the Indemnifying Party such Indemnitees Acquisition shall have the right to employ separate counsel of its choice to represent Acquisition if, in Acquisition's reasonable judgment, a conflict of interest between Acquisition and the Majority Shareholders exists in respect of such Third-Party Claim, and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Partythe Majority Shareholders. If any Indemnifying Party elects the Majority Shareholders elect not to assume responsibility for compromise or defend against a Third-Party Claim (which Claim, or fail to notify Acquisition of their election as provided in this Section 12.4, Acquisition may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3pay, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle defend such Third-Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt on behalf of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement account and continue to refrain from participation in the defense risk of the claimMajority Shareholders. The Majority Shareholders shall not consent to entry of any judgment or enter into any settlement without the written consent of Acquisition (which consent shall not be unreasonably withheld), in which event each unless such Indemnifying Party shall have no further right to contest the amount judgment or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records provides solely for money damages or other documents within its control or money payments for which it otherwise has the ability Acquisition is entitled to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates indemnification hereunder and includes as an unconditional term thereof the giving by such the claimant or plaintiff to each Indemnitee Acquisition of a written release from all liability in respect of such Third-Party Claim, and .
(iic) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing If there is a reasonable likelihood that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such a Third-Party Claim free of any participation by such Indemnifying Partymay have a material adverse effect on Acquisition, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date other than as a result of each such Indemnitee’s continuing money damages or other money payments for which Acquisition is entitled to pursue indemnification hereunder, Acquisition will have the right, after consultation with the Majority Shareholders and at the cost and expense of the Majority Shareholders, to defend such Third-Party Claim.
(ed) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss Damages shall, at any time subsequent to the payment required by pursuant to this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee Acquisition to each Indemnifying Partythe Majority Shareholders.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Exigent International Inc)
Procedure for Indemnification. (a) If Except as may be set forth in a Related Agreement, if an Indemnitee shall receive notice or otherwise learn of the assertion by a person Person (including including, without limitation, any governmental entity) who is not a party to this Agreement or to any of the Transaction Documents Related Agreements of any claim or of the commencement by any such Person of any action Action (a “"Third-Party Claim”") with respect to which an Indemnifying Party may be obligated to provide indemnification pursuant to this Agreement, each such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after becoming aware of such Third-Party Claim; provided, however, PROVIDED that the failure of any Indemnitee to give notice as required by this Section 5.5 5.05 shall not relieve each the Indemnifying Party of its obligations under this Article V, except to the extent that each such Indemnifying Party is prejudiced by such failure to give notice. Such notice shall describe the Third-Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
(b) An Indemnifying Party may elect to defend or to seek to settle or compromise, at such Indemnifying Party’s 's own expense and by such Indemnifying Party’s 's own counsel reasonably acceptable to each Indemniteecounsel, any Third-Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each the Indemnitee is entitled to indemnification hereunder in respect of such Third-Party Claim. Within 30 days of the receipt of notice from an Indemnitee in accordance with Section 5.5(a5.05(a) (or sooner, if the nature of such Third-Party Claim so requires), the Indemnifying Party shall notify each the Indemnitee of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each the Indemnitee of its election within 30 days after receipt of such notice from each the Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim), and each such Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each an Indemnitee of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, PROVIDED that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ ' reasonable judgment there exists a conflict of interest between such Indemnitees and the such Indemnifying Party exists in respect of such claim, such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any an Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 5.01, 5.02 or 5.35.03, as the case may be), each ) such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim Claim. Notwithstanding the foregoing, an Indemnitee may not settle or compromise any claim without prior written notice to each such the Indemnifying Party, which shall have the option within fifteen ten days following the receipt of such notice (i) to reject disapprove the settlement and assume all past and future responsibility for the claim, including reimbursing each the Indemnitee for prior expenditures in connection with the claim, or (ii) to reject disapprove the settlement and continue to refrain from participation in the defense of the claim, in which event each such the Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each the Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such the Indemnifying Party’s 's right to contest each the Indemnitee’s 's right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such the Indemnifying Party makes no response to such written notice from an the Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each the Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 5.05 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each the Indemnitee of a written release from all liability in respect of such Third-Party Claim, Claim (and (ii) provided further that such settlement does may not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents theretowithout the written consent of Indemnitee). In the event any the Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim Claim, free of any participation by such Indemnifying Party, at each such Indemnitee’s 's sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such the offer of settlement to settle or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus ) PLUS (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s 's continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an the Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.applicable
Appears in 1 contract
Procedure for Indemnification. (a) If A party claiming indemnification under Sections 17.1 or 17.2 (in this Article an Indemnitee "Indemnitee") shall receive give notice or otherwise learn of to the assertion by a person party against which indemnification is claimed (including any governmental entity) who is not a party to in this Agreement or to any of the Transaction Documents of any claim or of the commencement by any such Person of any action (a “Third-Party Claim”Article an "Indemnitor") with respect to which an Indemnifying Party may be obligated to provide indemnification pursuant to this Agreement, each such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after reasonable promptness upon becoming aware of the claim or other facts upon which a claim for indemnification will be based. The notice shall set forth such Third-Party Claim; provided, however, that the failure of any Indemnitee to give notice information and be accompanied by such documentation with respect thereto as required by this Section 5.5 shall not relieve each Indemnifying Party of its obligations under this Article V, except is then reasonably available to the extent that each such Indemnifying Party is prejudiced by such failure to give notice. Such notice shall describe the Third-Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
(b) An Indemnifying Party may elect The Indemnitor shall have the right, exercisable by notice to defend or to seek to settle or compromise, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel reasonably acceptable to each the Indemnitee, any Third-Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect of such Third-Party Claim. Within 30 given within 21 days following receipt of the receipt of aforesaid notice from an Indemnitee in accordance with Section 5.5(a) (or sooner, if the nature of such Third-Party Claim so requires), the Indemnifying Party shall notify each Indemnitee of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each Indemnitee, to undertake and assume control of the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim), and each Indemnitee shall cooperate in the defense or settlement or compromise defence of such Third-Party Claim. After notice from an Indemnifying Party to each Indemnitee of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, that if the defendants in any such claim include both asserted by a third party (in this Article a "Third Party Claim"), including the Indemnifying Party right of compromise or settlement thereof, and one or more Indemnitees and the Indemnitee shall co-operate in such Indemnitees’ reasonable judgment there exists a conflict defence and make available all information and documentation requested by the Indemnitor with respect thereto;
(c) Upon the assumption of interest between such Indemnitees and control by the Indemnifying Party such Indemnitees Indemnitor as aforesaid, the Indemnitor shall have diligently proceed with the right to employ separate counsel and in that event the reasonable fees and expenses defence, compromise or settlement of such separate counsel (but not more than one separate Third Party Claim at the Indemnitor's sole expense, including employment of counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement Indemnitee; and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of Indemnitee shall co-operate fully with, but at the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemniteeexpense of, the Indemnifying Party shall be deemed Indemnitor, to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to the Indemnitor all pertinent information, documentation and witnesses under the Indemnitee's control and take such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has steps as in the ability to make available that opinion of counsel for the Indemnitor are necessary or appropriate for desirable to enable the Indemnitor to conduct such defense, within the reasonable discretion of each such Indemnifying Partydefence.
(d) Notwithstanding anything else In the event that the Indemnitor fails to give notice to the Indemnitee as provided in paragraph (b) of this Section 5.5 17.3 or in the event that the Indemnitor declines to undertake the defence of any such Third Party Claim when first notified thereof, the Indemnitee shall keep the Indemnitor advised as to the contrarycurrent status and progress thereof, an Indemnifying Party and the Indemnitor shall not settle or compromise any Third-retain the right to undertake the defence thereof as aforesaid until such Third Party Claim unless (i) such is fully resolved. Unless and until the Indemnitor so undertakes the defence thereof, the Indemnitee agrees not to make any offer of compromise or settlement or compromise contemplates as an unconditional term thereof without first having given 10 days' notice to the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents theretoIndemnitor. In the event that the Indemnitor so undertakes the defence of any such Third Party Claim the Indemnitee shall notify the Indemnifying Party nevertheless be entitled to participate in writing that such Indemnitee declines to accept any such settlement (but not control or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (idirect) the costs defence, compromise or settlement thereof with counsel of its own choice, and expenses of each such Indemnitee prior the parties agree to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual outco-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee operate fully with one another in connection with any Third-Party Claimthe defence, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events compromise or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claimsettlement thereof.
Appears in 1 contract
Sources: Asset Purchase Agreement (United Stationers Supply Co)
Procedure for Indemnification. (a) If an Indemnitee The Buyer shall receive give prompt written notice (within 30 days) to the Seller of any claim or otherwise learn event known to it which does or may give rise to a claim for indemnification hereunder by the Buyer against the Seller; provided that the failure of the assertion Buyer to give notice as provided in this Agreement shall not relieve the Seller of his obligations under this Article 5 to the extent that such failure has not prejudiced the Seller.
(b) In the case of any claim for indemnification hereunder arising out of a claim, action, suit or proceeding brought by a person (including any governmental entity) Person who is not a party to this Agreement or to any of (a "Third Party Claim"), the Transaction Documents Buyer shall also give the Seller copies of any claim written claims, process or of the commencement by any such Person of any action (a “Third-Party Claim”) legal pleadings with respect to which an Indemnifying such Third Party may be obligated to provide indemnification pursuant to this Agreement, each such Indemnitee shall give each such Indemnifying Party written notice thereof Claim promptly after becoming aware of such Third-Party Claim; provideddocuments are received by the Buyer, however, it being understood that any delay in remitting such documentation by the failure of any Indemnitee to give notice as required by this Section 5.5 Buyer shall not relieve each Indemnifying Party the Seller of its his obligations under this Article V, 5 except to the extent that each such Indemnifying Party is prejudiced by such failure to give notice. Such notice shall describe has prejudiced the Third-Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such IndemniteeSeller.
(bc) An Indemnifying Party The Seller may elect to compromise or defend the Company or to seek to settle or compromisethe Buyer, at such Indemnifying Party’s his own expense and by such Indemnifying Party’s his own counsel reasonably acceptable to each Indemniteecounsel, any Third-Third Party Claim. If the Seller elects to compromise or defend a Third Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect of such Third-Party Claim. Within shall, within 30 days of the receipt of notice from an Indemnitee in accordance with Section 5.5(a) (or sooner, if the nature of such Third-Third Party Claim so requires), notify the Indemnifying Buyer of its intent to do so, and the Buyer shall reasonably cooperate in the compromise of, or defense against, such Third Party shall Claim. If the Seller elects not to compromise or defend against a Third Party Claim, or fails to notify each Indemnitee the Buyer of its election whether to assume responsibility for as provided in this Section 5.3, the Buyer may pay, compromise or defend such Third-Third Party Claim (provided that if at the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim), and each Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each Indemnitee of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees and the Indemnifying Party such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense expense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying PartySeller.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-If there is a reasonable likelihood that a Third Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof may adversely affect the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party ClaimBuyer, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date other than as a result of each money damages or other money payments for which the Buyer is entitled to indemnification hereunder, the Buyer will have the right, after consultation with the Seller, to have sole control of the defense and settlement of such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Third Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period notwithstanding the provisions of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the PartiesSection 5.5.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
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Procedure for Indemnification. (a) If an Indemnitee shall receive notice or otherwise learn of the assertion by a person (including including, without limitation, any governmental entity) who is not a party to this Agreement or to any of the Transaction Documents Ancillary Agreements of any claim or of the commencement by any such Person person of any action Action (a “Third-"Third Party Claim”") with respect to which an Indemnifying Party may be obligated to provide indemnification pursuant to this Agreement, each such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after becoming aware of such Third-Third Party Claim; provided, however, that the failure of any Indemnitee to give notice as required by provided in this Section 5.5 5.04 (the "Notice") shall not relieve each the related Indemnifying Party of its obligations under this Article V, except to the extent that each such Indemnifying Party is prejudiced by such failure to give noticeNotice. Such notice Notice shall describe the Third-Third Party Claim in reasonable detail, and shall indicate the amount (estimated if necessaryto the extent practicable) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
(b) An Indemnifying Party may elect to defend or to seek to settle or compromise, at such Indemnifying Party’s 's own expense and by such Indemnifying Party’s 's own counsel reasonably acceptable counsel, any Third Party Claim by delivering to each the Indemnitee, any Third-Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect of such Third-Party Claim. Within within 30 days of receipt of Notice (or sooner (but in no event less than 10 days after the receipt of notice from an Indemnitee in accordance with Section 5.5(a) (or soonerNotice), if the nature of such Third-Third Party Claim so requires), the Indemnifying Party shall notify each Indemnitee written acknowledgment (the "Acknowledgment") of its election whether indemnification obligation under this Agreement with respect to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Third Party Claim). The Acknowledgment may specify reservations and exceptions to the extent reasonably acceptable to the Indemnitee or consistent with the terms of this Agreement and the Ancillary Agreements, and each such Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Third Party Claim. If the Indemnifying Party elects to assume responsibility for defending such Third Party Claim, the Indemnifying Party shall also notify the claimant or plaintiff asserting such Third Party Claim of such election and request that all communications in relation to the Third Party Claim be made, delivered or addressed to the Indemnifying Party, instead of the Indemnitee. If it is later determined that the defendants to the Third Party Claim include both the Indemnifying Party and the Indemnitee, the Indemnitee shall thereupon notify the claimant or plaintiff asserting such Third Party Claim that all communications in relation to the Third Party Claim should also be made, delivered or addressed to the Indemnitee. After notice from an Indemnifying Party to each an Indemnitee of its election to assume responsibility for the defense of a Third-Third Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, howeverthat, that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ ' reasonable judgment there exists a conflict of interest between such Indemnitees and such Indemnifying Party exists in respect of such claim or if the Indemnifying Party shall assume responsibility for such claim with such reservations or exceptions to the extent reasonably acceptable to the Indemnitee or consistent with the terms of this Agreement and the Ancillary Agreements, such Indemnitees shall have the right to employ separate counsel to represent such Indemnitees and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any an Indemnifying Party elects not to assume responsibility for defending a Third-Third Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 5.01 or 5.35.02, as the case may be), each ) such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Third Party Claim Claim. Notwithstanding the foregoing, an Indemnitee may not settle or compromise any claim without prior written notice to each such the Indemnifying Party, which shall have the option within fifteen ten days following the receipt of such notice (i) to reject disapprove the settlement and assume all past and future responsibility for the claim, including reimbursing each the Indemnitee for prior expenditures in connection with the claim, or (ii) to reject disapprove the settlement and continue to refrain from participation in the defense of the claim, in which event each such the Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each the Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such the Indemnifying Party’s 's right to contest each the Indemnitee’s 's right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such the Indemnifying Party makes no response to such written notice from an the Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Third Party Claim, each the related Indemnitee shall make available to such Indemnifying Party any personnel and or any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 5.04 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Third Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such the claimant or plaintiff asserting such Third Party Claim to each the Indemnitee of a written release from all liability in respect of such Third-Third Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any the Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Third Party Claim Claim, free of any participation by such Indemnifying Party, at each such Indemnitee’s 's sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Third Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such the offer of settlement to settle or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), ) plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-of- pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s 's continuing to pursue such Third-Third Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Third Party Claim shall be asserted by written notice given by an the Indemnitee to each applicable the related Indemnifying Party. Each such Such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claimrespond thereto. If each such Indemnifying Party does not so notify each such Indemnitee during respond within such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party party, under applicable law or under this Agreement or any other agreement or arrangement between the PartiesAgreement.
(f) In addition to any adjustments required pursuant to Section 5.45.03, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each the Indemnitee to each the Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Third Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Third Party Claim against any claimant or plaintiff asserting such Third-Third Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
(h) In the event Safety shall determine in its reasonable judgment that it is likely that it will be named as a potentially responsible party in any Superfund or other environmental litigation or investigation with respect to a New ▇▇▇▇▇▇ Liability, if requested to do so by Safety, New ▇▇▇▇▇▇ shall notify the potential claimant(s) in such potential litigation of its indemnification obligation in favor of Safety under this Agreement.
Appears in 1 contract
Sources: Distribution Agreement (Autoliv Inc)
Procedure for Indemnification. (a) If an Indemnitee Indemnified Person shall receive written notice or otherwise learn of the assertion by a person Person (including including, without limitation, any governmental entityGovernmental Authority) who is not a party to this Agreement or to any of the Transaction Documents Related Agreements of any claim or of the commencement by any such Person of any action (a “Third-Party Claim”) Action with respect to which an Indemnifying Party may be obligated to provide indemnification pursuant to this AgreementAgreement (a "Third-Party Claim"), each such Indemnitee Indemnified Person shall give each such the Indemnifying Party written notice thereof promptly after becoming aware of such Third-Party Claim; provided, however, that the failure of any Indemnitee Indemnified Person to give notice as required by this Section 5.5 5.04 shall not relieve each the Indemnifying Party of its obligations under this Article V, except to the extent that each such Indemnifying Party is materially prejudiced by such failure to give notice. Such notice shall describe the Third-Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been claimed against or may be sustained by each such IndemniteeIndemnified Person.
(b) An Indemnifying Party may elect to defend or to seek to settle or compromise, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel reasonably acceptable to each Indemnitee, any Third-Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect of such Third-Party Claim. Within 30 15 days of the receipt of notice from an Indemnitee Indemnified Person in accordance with Section 5.5(a5.04(a) (or sooner, if the nature of such Third-Party Claim so requires), the Indemnifying Party shall notify each Indemnitee the Indemnified Person of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee the Indemnified Person of its election within 30 15 days after receipt of such notice from each Indemniteethe Indemnified Person, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim). An election not to assume responsibility for such Third-Party Claim may only be made in the event of a good faith dispute that a Third-Party Claim is not covered as an Indemnifiable Loss under the grounds specified in Section 5.01 or 5.02, as the case may be. Subject to Section 5.04(e) hereof, an Indemnifying Party may elect to defend or to seek to settle or compromise, at such Indemnifying Party's own expense and each Indemnitee by counsel reasonably satisfactory to the Indemnified Person, any Third-Party Claim, provided that (i) the Indemnifying Party must confirm in writing that it agrees that the Indemnified Person is entitled to indemnification hereunder in respect of such Third-Party Claim; and (ii) no compromise or settlement shall be made without the prior written consent of the Indemnified Person, which consent shall not be reasonably withheld.
(c) In the event that the Indemnifying Party elects to assume responsibility for the Third-Party Claim, pursuant to Section 5.04(b) above, (i) the Indemnified Person shall cooperate in the defense or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each Indemnitee of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees and the Indemnifying Party such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory including making available to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its the Indemnified Person's control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion defense of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus ; (ii) the lesser Indemnifying Party shall keep the Indemnified Person reasonably informed regarding the strategy, status and progress of (A) the amount defense of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
claim; and (eiii) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such the Indemnifying Party shall have a period of 30 days after consider, in good faith, the receipt of such notice within which to notify each applicable Indemnitee opinions and suggestions of the Indemnifying Party’s response Indemnified Person with respect to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.the
Appears in 1 contract
Procedure for Indemnification. (a) If Except as may be set forth in a Related Agreement, if an Indemnitee shall receive notice or otherwise learn of the assertion by a person Person (including including, without limitation, any governmental entity) who is not a party to this Agreement or to any of the Transaction Documents Related Agreements of any claim or of the commencement by any such Person of any action Action (a “"Third-Party Claim”") with respect to which an Indemnifying Party may be obligated to provide indemnification pursuant to this Agreement, each such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after becoming aware of such Third-Party Claim; provided, however, PROVIDED that the failure of any Indemnitee to give notice as required by this Section 5.5 5.05 shall not relieve each the Indemnifying Party of its obligations under this Article V, except to the extent that each such Indemnifying Party is prejudiced by such failure to give notice. Such notice shall describe the Third-Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
(b) An Indemnifying Party may elect to defend or to seek to settle or compromise, at such Indemnifying Party’s 's own expense and by such Indemnifying Party’s 's own counsel reasonably acceptable to each Indemniteecounsel, any Third-Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each the Indemnitee is entitled to indemnification hereunder in respect of such Third-Party Claim. Within 30 days of the receipt of notice from an Indemnitee in accordance with Section 5.5(a5.05(a) (or sooner, if the nature of such Third-Party Claim so requires), the Indemnifying Party shall notify each the Indemnitee of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each the Indemnitee of its election within 30 days after receipt of such notice from each the Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim), and each such Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each an Indemnitee of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, PROVIDED that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ ' reasonable judgment there exists a conflict of interest between such Indemnitees and the such Indemnifying Party exists in respect of such claim, such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any an Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 5.01, 5.02 or 5.35.03, as the case may be), each ) such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim Claim. Notwithstanding the foregoing, an Indemnitee may not settle or compromise any claim without prior written notice to each such the Indemnifying Party, which shall have the option within fifteen ten days following the receipt of such notice (i) to reject disapprove the settlement and assume all past and future responsibility for the claim, including reimbursing each the Indemnitee for prior expenditures in connection with the claim, or (ii) to reject disapprove the settlement and continue to refrain from participation in the defense of the claim, in which event each such the Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each the Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such the Indemnifying Party’s 's right to contest each the Indemnitee’s 's right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such the Indemnifying Party makes no response to such written notice from an the Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each the Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 5.05 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each the Indemnitee of a written release from all liability in respect of such Third-Party Claim, Claim (and (ii) provided further that such settlement does may not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents theretowithout the written consent of Indemnitee). In the event any the Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim Claim, free of any participation by such Indemnifying Party, at each such Indemnitee’s 's sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such the offer of settlement to settle or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus ) PLUS (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s 's continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an the Indemnitee to each the applicable Indemnifying Party. Each such Such Indemnifying Party shall have a period of 30 15 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claimrespond thereto. If each such Indemnifying Party does not so notify each respond within such Indemnitee during such 3015-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 3015-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party party under applicable law or under this Agreement or any other agreement or arrangement between the PartiesAgreement.
(f) In addition to any adjustments required pursuant to Section 5.45.04, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each the Indemnitee to each the Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
(h) Notwithstanding anything else in this Section 5.05 to the contrary, with respect to any Action pending at the time of the Distribution (a "Pending Action") with respect to which an Indemnifying Party may be obligated to provide indemnification pursuant to this Agreement, Excel, EDV or Legacy shall, at the request of any other party, cause the employee(s) who were handling the defense, compromise or settlement of such Pending Action prior to the Distribution to continue to handle such defense, compromise or settlement following the Distribution (subject to the last two sentences of subsection (b) above). If such employees are employed by the Indemnitee, the Indemnitee shall keep the Indemnifying Party reasonably informed of the progress of, and the Indemnifying Party shall cooperate in, such defense, compromise or settlement.
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Procedure for Indemnification. (a) If an Indemnitee any party entitled to indemnification under Section 10.2 (which for purposes of this Section 10.5 and Section 10.7 shall include the Surviving Corporation and Parent) (the "Indemnified Party") shall receive notice or otherwise learn of the assertion by a person (including any governmental entity) who is not a party to this Agreement or to any of the Transaction Documents other Person of any claim or of the commencement by any such Person of any action (a “Third-"Third Party Claim”") with respect to which an Indemnifying Party a party may be obligated to provide indemnification pursuant to this AgreementSection 10.2 (the "Indemnifying Party"), each such Indemnitee Indemnified Party shall give each such Indemnifying Party written notice thereof promptly to the Indemnifying Party (or to the Equity Holders' Representatives if the Indemnifying Party is an Equity Holder) within 10 business days after becoming aware of such Third-Third Party Claim; provided, however, that the failure of any Indemnitee Indemnified Party to give notice as required by provided in this Section 5.5 10.5 shall not relieve each the Indemnifying Party of its obligations under this Article VSection 10.2, except to the extent that each such the Indemnifying Party actually is prejudiced by such failure to give notice. Such notice shall describe the Third-Third Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss Damages that has been or may be sustained by each such IndemniteeIndemnified Party. Thereafter, such Indemnified Party shall deliver to the Indemnifying Party (or to the Equity Holders' Representatives if the Indemnifying Party is an Equity Holder) within 5 business days after the Indemnified Party's receipt thereof, copies of all notices and documents received by the Indemnified Party relating to the Third Party Claim (including court papers).
(b) An Indemnifying Party may elect to defend or to seek to settle or compromise, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel reasonably acceptable to each Indemnitee, In case any Third-Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect of such Third-Party Claim. Within 30 days of the receipt of notice from an Indemnitee in accordance with Section 5.5(a) (or sooner, if the nature of such Third-Third Party Claim so requires), the Indemnifying Party shall notify each Indemnitee of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each is brought against a Parent Indemnitee, the Indemnifying Party shall Equity Holders' Representatives will be deemed entitled to have elected not participate in and to assume responsibility for the defense thereof to the extent that they may wish, with counsel reasonably satisfactory to such Third-Party Claim)Parent Indemnitee, and each Indemnitee shall cooperate in after notice from the Equity Holders' Representatives of their election so to assume the defense or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each Indemnitee of its election to assume responsibility for a Third-Party Claimthereof, such Indemnifying Party shall the Equity Holders will not be liable to each such Parent Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Parent Indemnitee in connection with the defense thereof; provided, however, that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees and the Indemnifying Party such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses the Equity Holders' Representatives choose to defend or to seek to compromise or settle any Third-Third Party Claim, each related Parent Indemnitee shall make available to such Indemnifying Party the Equity Holders' Representatives any personnel and or any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within settlement or compromise, and shall otherwise cooperate in the reasonable discretion defense, settlement or compromise of each such Indemnifying PartyThird Party Claim.
(d) No Third Party Claim made against any Indemnified Party shall be settled without the prior written consent of the Indemnifying Party. Notwithstanding anything else in this Section 5.5 10.5 to the contrary, an Indemnifying Party neither the Equity Holders' Representatives nor any Parent Indemnitee shall not settle or compromise any Third-Third Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof of the giving by such claimant or 49 56 plaintiff to each related Parent Indemnitee of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Third Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party the Equity Holders to any Parent Indemnitee in connection with any Third-Third Party ClaimClaim of the full amount payable under Section 10.2 in respect thereof, such Indemnifying Party the Equity Holders shall be subrogated to and shall stand in the place of such Parent Indemnitee as to any events or circumstances in respect of which such Parent Indemnitee may have any right or claim relating to such Third-Third Party Claim against any claimant or plaintiff asserting such Third-Third Party ClaimClaim or as against any other Person. Such In such event, such Parent Indemnitee shall cooperate with such Indemnifying Party the Equity Holders in a reasonable manner, and at the cost and expense of such Indemnifying Partythe Equity Holders, in prosecuting prospecting any subrogated right or claim.
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Procedure for Indemnification. (a) If any Person entitled to seek indemnification under this Article VII (an “Indemnitee”) receives notice of the assertion, commencement or imposition of a claim, suit, action or proceeding, or the imposition of a penalty or assessment by a third party that is not an Indemnitee shall receive notice or otherwise learn of the assertion by a person (including any governmental entity) who is not a party to this Agreement or to any of the Transaction Documents of any claim or of the commencement by any such Person of any action (a “Third-Party Claim”), and the Indemnitee intends to seek indemnity hereunder for such Third-Party Claim, then the Indemnitee shall promptly provide the party against whom such indemnity may be sought (the “Indemnifying Party”) with respect to which an Indemnifying Party may be obligated to provide indemnification pursuant to this Agreement, each such Indemnitee shall give each such Indemnifying Party written notice thereof promptly of such Third-Party Claim (including any written demand, complaint, petition, summons or similar document relating thereto that is then in the Indemnitee’s possession), but in any event not later than 30 days after becoming aware receipt of notice of such Third-Party Claim. Any delay in providing, or the failure to provide such notification, shall not affect the right of the Indemnitee to indemnification hereunder except in the event that such delay or failure extends past the applicable survival expiration date set forth in Section 7.1 or to the extent that the Indemnifying Party is materially prejudiced by the delay or failure.
(b) In connection with any Third-Party Claim, the Indemnifying Party may elect, by written notice to the Indemnitee, to assume and control, at its sole expense, the defense of any such Third-Party Claim, and shall, at its sole expense, retain counsel (reasonably satisfactory to the Indemnitee) in connection therewith; provided, however, that the failure of any Indemnitee to give notice as required by this Section 5.5 shall not relieve each Indemnifying Party of its obligations under this Article V, except to will not have such right:
(i) unless the extent that each such Indemnifying Party is prejudiced by such failure to give notice. Such notice shall describe has acknowledged in writing, within 20 days following the Third-Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
(b) An Indemnifying Party may elect to defend or to seek to settle or compromise, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel reasonably acceptable to each Indemnitee, any receipt of notice of the Third-Party Claim, to such Indemnitee the obligation of the Indemnifying Party in accordance with the terms of this Agreement to indemnify the Indemnitee for all Losses that may be or have been suffered or incurred by the Indemnitee and that have been or may be caused by or resulting or arising out of the Third-Party Claim;
(ii) unless the Indemnifying Party has provided to such Indemnitee reasonable evidence that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled has reasonably sufficient financial resources to indemnification hereunder in respect of defend such Third-Party Claim. Within 30 days ;
(iii) if such Indemnitee reasonably and in good faith believes that such Third-Party Claim would be reasonably detrimental to the reputation, relations with customers, vendors or suppliers, or business of the receipt Indemnitee or any of notice from an its Affiliates;
(iv) if such Third-Party Claim involves criminal allegations; or
(v) if outside counsel advises the Indemnitee in accordance that there are actual or potential conflicting interests between the Indemnifying Party and the Indemnitee with Section 5.5(arespect to the Third-Party Claim.
(c) After the assumption of such defense by the Indemnifying Party, the Indemnifying Party shall not be responsible for the payment of legal fees or expenses incurred thereafter by the Indemnitee (or soonerwho may, if however, continue to participate in, but not control, the nature defense of such Third-Party Claim so requireswith separate counsel and at its own expense other than as provided in Section 7.5(b)(v), ).
(d) In the event that the Indemnifying Party shall notify each Indemnitee assume the defense of its election whether to assume responsibility for the Third-Party Claim, it shall not settle or compromise such Third-Party Claim unless (provided that if i) the Indemnifying Party does Indemnitee gives its prior written consent, which consent shall not so notify each Indemnitee be unreasonably withheld or delayed, or (ii) the terms of its election within 30 days after receipt of such notice from each Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim), and each Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each Claim provide that the Indemnitee of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees and the Indemnifying Party such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future no responsibility for the claimdischarge of any settlement amount and impose no other obligations or duties on the Indemnitee (including any admission of culpability), including reimbursing each Indemnitee for prior expenditures in connection with and the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof discharges all claims against the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim Claim. The Indemnitee shall be equal to (i) cooperate with the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount defense of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party ClaimClaim and shall provide such personnel, technical support and access to information as may be reasonably requested by the Indemnifying Party in connection with such defense.
(e) Any claim on account of an Indemnifiable Loss which If the Indemnifying Party does not, or does not result from have the right to, undertake the defense, compromise or settlement of a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to accordance with Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise7.5(b), the amount Indemnitee will have the right to control the defense or settlement of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against with counsel of its choosing. The Indemnifying Party will be entitled (at the Indemnifying Party’s expense) to participate in the defense of any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate Claim with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claimits own counsel.
Appears in 1 contract
Sources: Purchase and Assignment Agreement (Handleman Co /Mi/)
Procedure for Indemnification. (a) If an Indemnitee Except as otherwise set forth in this Section 7.4, the period during which (i) Indemnification Claims may be made (except for Indemnification Claims under Section 7.2(a)(vii) or Section 7.2(b)(v)) shall receive notice or otherwise learn be the General Survival Period, (ii) Indemnification Claims may be made under Section 7.2(b)(i)-(iv) shall be the date that is three years from the Closing Date and (iii) Indemnification Claims may be made under Section 7.2(a)(vii) and Section 7.2(b)(v) shall be seven (7) years from the Closing Date (together with the General Survival Period, the “Survival Periods” and each, a “Survival Period”).
(b) An Indemnified Party shall, prior to the expiration of the assertion by a person (including any governmental entity) who is not a party applicable Survival Period with respect to this Agreement or to any of the Transaction Documents of any claim or of the commencement by any such Person of any action an Indemnification Claim, give written notice (a “Claim Notice”) of any Indemnification Claim by or on behalf of any Indemnified Party to the Holder Representative, reasonably promptly, but in any event if such Indemnification Claim relates to the assertion against an Indemnified Party of any Third-Party Claim”, within fifteen (15) with respect to which an Indemnifying Business Days after receipt by such Indemnified Party may be obligated to provide indemnification pursuant to this Agreement, each such Indemnitee shall give each such Indemnifying Party of written notice thereof promptly after becoming aware of a Legal Proceeding relating to such Third-Party Claim; provided, however, except that the failure of any Indemnitee to give notice as required by this Section 5.5 so notify the Holder Representative within such time period shall not relieve each Indemnifying the Vested Equityholders of any obligation to indemnify the Indemnified Party of its obligations under this Article VVII, except to the extent that each the ability of the Holder Representative to resolve such Indemnifying Party Indemnification Claim is prejudiced materially and adversely affected by such failure to give noticedelay or failure. Such notice Each Claim Notice shall describe the Third-Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
(b) An Indemnifying Party may elect to defend or to seek to settle or compromise, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel reasonably acceptable to each Indemnitee, any Third-Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect of such Third-Party Claim. Within 30 days of the receipt of notice from an Indemnitee in accordance with Section 5.5(a) (or sooner, if the nature of such Third-Party Claim so requires), the Indemnifying Party shall notify each Indemnitee of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim), and each Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each Indemnitee of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees and the Indemnifying Party such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claimstate that an Indemnified Party has paid, including reimbursing each Indemnitee for prior expenditures in connection with the claimincurred, suffered or sustained, or reasonably anticipates that it may pay, incur, suffer or sustain Losses, (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of describe (A) the amount of any offer of settlement or compromise which each such Indemnitee declined claimed Losses in reasonable detail (to accept the extent known and reasonably quantifiable by Parent), and (B) the actual out-of-pocket amount each basis for such Indemnitee anticipated Loss, and, if applicable, the nature of the misrepresentation, breach of warranty or covenant to which such item is obligated related. Parent may update a Claim Notice from time to pay subsequent time to reflect any change in circumstances following the date thereof. Following the delivery of a Claim Notice, the Holder Representative and its representatives and agents shall be given all such access (including electronic access, to the extent available) to the books and records of the Surviving Corporation and reasonable access during normal business hours to such date personnel or other representatives of the Surviving Corporation and Parent, in each case as a result they may reasonably require for the purposes of each such Indemnitee’s continuing to pursue such Third-Party Claiminvestigating or resolving any disputes relating to, or responding to, any matters or inquiries raised in the Claim Notice.
(ec) Unless the Holder Representative contests the Indemnification Claim in writing delivered to Parent within twenty (20) Business Days after receipt of a Claim Notice and describing in reasonable detail the basis for contesting the Indemnification Claim (an “Indemnification Claim Objection Notice”), the Indemnified Party shall, subject to the other terms of this Article VII, be paid the amount of Losses related to such Indemnification Claim or the uncontested portion thereof. Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim disputed Indemnification Claims shall be asserted resolved either (i) in a written agreement signed by written notice given Parent and the Holder Representative or (ii) by an Indemnitee to each applicable Indemnifying Party. Each the final, non-appealable decision of a court resolving such Indemnifying Party shall have disputed Indemnification Claim (a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties“Final Order”).
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(gd) In the event that the Holder Representative shall timely deliver an Indemnification Claim Objection Notice in accordance with Section 7.4(c), the Holder Representative and Parent shall attempt in good faith to agree upon the rights of payment by an Indemnifying Party the respective parties with respect to any Indemnitee in connection with any Third-Party Claimeach of such claims for a period of at least sixty (60) days. If the Holder Representative and Parent should so agree, a memorandum setting forth such Indemnifying Party agreement shall be subrogated to prepared and shall stand signed by both parties and, in the place case of an Indemnification Claim to be recovered from the Escrow Fund, shall be furnished to the Escrow Agent (a “Joint Memorandum”). If Parent and the Holder Representative cannot reach such Indemnitee as an agreement, then either party may pursue a claim subject to the limitations set forth in Section 9.6 to obtain a Final Order. The Escrow Agent will not distribute any events disputed amount except pursuant to a Joint Memorandum or circumstances Final Order; and the Escrow Agent shall be entitled to conclusively rely on any Joint Memorandum or Final Order and make distributions from the Escrow Fund in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate accordance with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claimterms thereof.
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Procedure for Indemnification. Promptly after a Party indemnified pursuant to this Section (athe "Indemnitee") If an Indemnitee shall receive has received notice of or otherwise learn has knowledge of the assertion any claim by a person (including any governmental entity) who is not a party to this Indemnity Agreement (for the purposes of this Section 16, a "third party") or to the commencement of any action or proceeding by a third party, the Indemnitee shall promptly, and in any event within sixty (60) days of the Transaction Documents Indemnitee's receipt of notice of the assertion of any claim or of the commencement by any such Person discovery of any action fact upon which the Indemnitee intends to base a claim for indemnification under this Section 16 (an "Indemnitee Claim"), as a “Third-Party condition precedent to the Indemnitee Claim”) with respect to which an Indemnifying Party may be obligated to provide indemnification pursuant to this Agreement, each such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after becoming aware to the party or parties from whom indemnification is sought (the "Indemnitor") of such Third-Party Claimclaim; provided, however, that the any delay or failure to notify any Indemnitor of any Indemnitee to give notice as required by this Section 5.5 claim shall not relieve each Indemnifying Party of its obligations under this Article V, it from any liability except to the extent that each the Indemnitor demonstrates that the defense of such Indemnifying Party is action has been materially prejudiced by such delay or failure to give noticenotify. Such notice shall describe state the Third-nature and basis of such claim. In the event that any Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
(b) An Indemnifying Party may elect to defend or to seek to settle or compromise, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel reasonably acceptable to each Indemnitee, incur any Third-Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder damages in respect of which indemnity may be sought by such Third-Party Claimpursuant to this Section 16 or any other provision of this Agreement, the Indemnitee shall notify the Indemnitor promptly in writing. Within 30 In the case of third party claims, the Indemnitor shall, within 10 days of the receipt of notice from an Indemnitee in accordance with Section 5.5(a) (or sooner, if the nature of such Third-Party Claim so requires)claim, notify the Indemnifying Party shall notify each Indemnitee of its election whether intention to assume responsibility for the defense of such Third-Party Claim (provided that claim if the Indemnifying Party does not so notify each Indemnitee Indemnitor concurrently assumes the obligation to indemnify the Indemnitee. If the Indemnitor assumes the defense of its election within 30 days after receipt of such notice from each Indemniteethe claim, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim), and each Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each Indemnitee of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees and the Indemnifying Party such Indemnitees Indemnitor shall have the right and obligation: (a) to conduct any proceedings or negotiations in connection therewith and necessary or appropriate to defend the Indemnitee; (b) to take all other required steps or proceedings to settle or defend any such claims; and (c) to employ separate counsel and to contest any such claim or liability in that event the reasonable fees and expenses name of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying PartyIndemnitee or otherwise. If the Indemnitor shall not assume the defense of any Indemnifying Party elects not such claim or litigation resulting therefrom, the Indemnitee may defend against any such claim or litigation in such manner as it may deem appropriate and the Indemnitee may settle such claim or litigation on such terms as it may deem appropriate, and assert against the Indemnitor any rights or claims to assume responsibility for a Third-Party Claim (which election may be made only in the event Indemnitee is entitled. Payment of a good faith dispute that a claim was inappropriately tendered under Section 5.2 Pavilion or 5.3Pegasus damages, as the case may be), each shall be made within 10 days of a final determination of a claim. A final determination of a disputed claim shall be: (v) a judgment of any court determining the validity of the disputed claim, if no appeal is pending from such Indemnitee may defend judgment or if the time to appeal therefrom has elapsed; (subject to w) an award of any arbitration determining the following sentence) seek to compromise or settle such Third-Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt validity of such notice (i) to reject the settlement and assume all past and future responsibility for the disputed claim, including reimbursing each Indemnitee for prior expenditures in connection with if there is not pending any motion to set aside such award or if the claim, or time limit to move to set such award aside has not elapsed; (iix) to reject the settlement and continue to refrain from participation in the defense a written termination of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee dispute with respect to such Third-Party Claim claim signed by all of the parties thereto or their attorneys; (y) a written acknowledgment of the Indemnitor that it no longer disputes the validity of such claim; or (z) such other evidence of final determination of a disputed claim as shall be equal to (i) the costs and expenses of each such Indemnitee prior acceptable to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claimparties.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
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Procedure for Indemnification. (a) If an Indemnitee shall receive notice or otherwise learn of the assertion by a person (including any governmental entity) who is not a party to this Agreement or to any of the Transaction Documents of any claim or of the commencement by any such Person of any action (a “Third-Third Party Claim”) Claim with respect to which an Indemnifying Party may be obligated under this Agreement to provide indemnification pursuant to this Agreementindemnification, each such Indemnitee shall give each such Indemnifying Party written prompt notice thereof promptly after becoming aware of such Third-Third Party Claim; provided, however, that the failure of any Indemnitee to give notice as required by provided in this Section 5.5 2.3 shall not relieve each any Indemnifying Party party of its obligations under this Article VII, except to the extent that each such Indemnifying Party is materially prejudiced by such failure to give noticethereby. Such notice shall describe the Third-Third Party Claim in reasonable detail, and and, if practicable, shall indicate the estimated amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
(b) An The Indemnifying Party may elect to defend or to seek to settle or compromiseParty, at such Indemnifying Party’s 's own expense and through counsel chosen by such Indemnifying Party’s own Party (which counsel shall be reasonably acceptable satisfactory to each the Indemnitee), may elect to defend any Third-Third Party Claim. If the Indemnifying Party elects to defend a Third Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect shall, within 30 Business Days after receiving notice of such Third-Third Party Claim. Within 30 days of the receipt of notice from an Indemnitee in accordance with Section 5.5(a) Claim (or sooner, if the nature of such Third-Third Party Claim so requires), notify the Indemnifying Party shall notify each Indemnitee of its election whether intent to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim)do so, and each such Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Third Party Claim. Such Indemnifying Party shall pay such Indemnitee's reasonable out-of-pocket expenses incurred in connection with such cooperation. After notice from an Indemnifying Party to each an Indemnitee of its election to assume responsibility for the defense of a Third-Third Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V II for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof. If an Indemnifying Party elects not to defend against a Third Party Claim, or fails to notify an Indemnitee of its election as provided in this Section 2.3, such Indemnitee may defend, compromise and settle such Third Party Claim; provided, however, that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees and the Indemnifying Party such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3, as the case may be), each no such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle any such Third-Third Party Claim without the prior written notice to each such consent of the Indemnifying Party, which consent shall have not be unreasonably withheld. Notwithstanding the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemniteeforegoing, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claimnot, each Indemnitee shall make available to such Indemnifying Party any personnel and any bookswithout the written consent of the Indemnitee, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party consent shall not be unreasonably withheld, settle or compromise any Third-Third Party Claim unless (i) such settlement or compromise contemplates consent to the entry of any judgment which does not include as an unconditional term thereof the giving delivery by such the claimant or plaintiff to each the Indemnitee of a written release from all liability Liabilities in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Third Party Claim.
(ec) Any In the event an Indemnitee should have a claim on account of an Indemnifiable Loss which (including any potential claim) against any Indemnifying Party under this Article II that does not result from involve a Third-Third Party Claim Claim, the Indemnitee shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each give such Indemnifying Party prompt notice of such claim; provided, however, that the failure of any Indemnitee to give notice as provided in this Section 2.3 shall have a period not relieve any Indemnifying Party of its obligations under this Article II, except to the extent that such Indemnifying Party is materially prejudiced thereby. Such notice shall describe the claim (or potential claim) in reasonable detail, and, if practicable, shall indicate the estimated amount of the Indemnifiable Loss that has been or may be sustained by such Indemnitee. If the Indemnifying Party does not notify the Indemnitee within 30 days after the Business Days following its receipt of such notice within which that the Indemnifying Party disputes its liability to notify each applicable the Indemnitee under this Article II, such claim specified by the Indemnitee in such notice shall be conclusively deemed a liability of the Indemnifying Party’s response to Party and the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, pay the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each liability to the Indemnitee to each Indemnifying Party.
(g) In within five days after expiration of such 30 Business Day period. If the event of payment by an Indemnifying Party timely disputes its liability with respect to any Indemnitee in connection with any Third-Party Claimsuch claim, such the Indemnifying Party and the Indemnitee shall be subrogated proceed in good faith to and shall stand in the place negotiate a resolution of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claimdispute.
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Procedure for Indemnification. (1) The following provisions and the provisions of Section 11.9 will apply to any claim by Buyer for indemnification by Sellers pursuant to Article 11 hereof (an "Indemnity Claim"):
(a) If an Indemnitee shall receive notice or otherwise learn of the assertion by a person (including any governmental entity) who is not a party to this Agreement or to any of the Transaction Documents of any claim or of the commencement by any such Person of any action (a “Third-Party Claim”) with respect to which an Indemnifying Party may be obligated to provide indemnification pursuant to this Agreement, each such Indemnitee shall give each such Indemnifying Party written notice thereof promptly Promptly after becoming aware of such Third-Party any matter that may reasonably give rise to an Indemnity Claim; provided, however, that Buyer will provide to Sellers written notice of the failure of any Indemnitee to give notice as required by this Section 5.5 shall not relieve each Indemnifying Party of its obligations under this Article V, except to Indemnity Claim specifying the extent that each such Indemnifying Party is prejudiced by such failure to give notice. Such notice shall describe basis for the Third-Party Indemnity Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.Indemnity Claim or, if an amount is not then determinable, an estimate of the amount of the Indemnity Claim, if an estimate is feasible in the circumstances;
(b) An Indemnifying Buyer will not negotiate, settle, compromise or pay (except in the case of payment of a judgment) any Indemnity Claim relating to an alleged Liability to any other Person (a "Third Party may elect Liability") as to defend or which it proposes to seek to settle or compromise, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel reasonably acceptable to each Indemnitee, any Third-Party assert an Indemnity Claim, provided that except with the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect prior written consent of such Third-Party Claim. Within 30 days of the receipt of notice from an Indemnitee in accordance with Section 5.5(a) Sellers (or sooner, if the nature of such Third-Party Claim so requires), the Indemnifying Party shall notify each Indemnitee of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim), and each Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each Indemnitee of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party which consent shall not be liable unreasonably withheld or delayed);
(c) With respect to each any Third Party Liability, provided Sellers first admit Buyer's right to indemnification for the amount of such Indemnitee under this Article V for Third Party Liability which may at any legal time be determined or settled, then, in any legal, administrative or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee proceedings in connection with the defense thereof; providedmatters forming the basis of the Third Party Liability, howeverthe following procedures will apply:
(i) Except as contemplated by subparagraph (ii) of this paragraph, that if Sellers will have the defendants in any such claim include both right to assume carriage of the Indemnifying compromise or settlement of the Third Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees Liability and the Indemnifying Party such Indemnitees conduct of any related Proceedings, but Buyer shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any Indemnifying Party elects not given the opportunity at its expense to assume responsibility for a Third-Party Claim (which election may be made only participate in the event defence of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3the Third Party Liability, as to consult with Sellers in the case may besettlement of the Third Party Liability and the conduct of related Proceedings (including consultation with counsel), each such Indemnitee may defend or ;
(subject to the following sentenceii) seek to compromise or settle such Third-Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice Notwithstanding subparagraphs (i) to reject of this paragraph, Sellers shall not settle the settlement and assume all past and future responsibility for Third Party Liability or conduct any legal, administrative or other proceedings in any manner which would, in the claimreasonable opinion of the Purchaser, including reimbursing each Indemnitee for prior expenditures in connection have a Material Adverse Effect on the condition of the Business or Buyer, except with the claim, prior written consent of Buyer (not to be unreasonably withheld or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the Indemnifying Party shall be deemed to have elected option (iidelayed).
(ciii) If an Indemnifying Sellers shall keep Buyer advised of the status of any Third Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel Liability and any books, records or other documents within its control or which will provide Buyer copies of all relevant documentation as it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Partybecomes available.
(d) Notwithstanding anything else in this Section 5.5 If, with respect to any Third Party Liability, Sellers do not admit Buyer's right to indemnification or declines to assume carriage of the settlement or of any Proceedings relating to the contraryThird Party Liability, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless then the following provisions will apply:
(i) such Buyer, at its discretion, may assume carriage of the settlement or compromise contemplates of Proceedings relating to the Third Party Liability and may defend or settle the Third Party Liability on such terms as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability Buyer, acting in respect of such Third-Party Claimgood faith, and considers advisable; and
(ii) such settlement does not provide for any non-monetary relief Any cost, loss, damage or expense incurred or suffered by any Indemnitee unless each such Indemnitee consents thereto. In Buyer in the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each defence of such Indemnitee may continue to contest such Third-Third Party Claim free Liability or the conduct of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim Proceedings shall be equal added to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Indemnity Claim.
(e2) Any claim on account The provisions of an Indemnifiable Loss which does not result from a Third-Party Claim Sections 11.8 and 11.9 shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition apply mutatis mutandis to any adjustments required Claim by Sellers for indemnification by Buyer pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying PartyArticle 11 hereof.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 1 contract
Procedure for Indemnification. (a) If a party entitled to be indemnified under this Agreement (an Indemnitee shall receive "Indemnitee") receives notice or otherwise learn of the assertion assertion, by an unaffiliated third party (a person (including any governmental entity"Third Party") who is not a party to this Agreement or to any of the Transaction Documents of any claim or of the commencement by any such Person person of any action or proceeding (a “Third-"Third Party Claim”") with respect to which an Indemnifying Party may be obligated to provide indemnification pursuant to is provided under this Agreement, each such the Indemnitee shall give each such Indemnifying Party written the Company prompt notice thereof promptly (together with a copy of any writing evidencing such claim) after becoming aware of such Third-Third Party Claim; provided, however, that . The right of the failure Indemnitee to be indemnified or compensated hereunder in respect of any Indemnitee Third Party Claim will be affected by its failure to give prompt notice as required by this Section 5.5 shall not relieve each Indemnifying of such Third Party of its obligations under this Article VClaim to the Company if, except and to the extent that each such Indemnifying Party is prejudiced by that, such failure to give noticeprejudices the Company in the defense of such Third Party Claim. Such notice The Company may, with the consent of Parent (which shall describe the Third-Party Claim in reasonable detail, and shall indicate the amount (estimated if necessarynot be unreasonably withheld) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
(b) An Indemnifying Party may elect to defend compromise or to seek to settle or compromisedefend, at such Indemnifying Party’s the Company's own expense and by such Indemnifying Party’s the Company's own counsel reasonably acceptable to each Indemniteecounsel, any Third-Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect of such Third-Third Party Claim. Within 30 days of If the receipt of notice from an Indemnitee in accordance with Section 5.5(a) (or soonerCompany does so elect, if the nature of such Third-Party Claim so requires)it shall, the Indemnifying Party shall notify each Indemnitee of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt receiving notice of the Third Party claim, notify the Indemnitee and Parent of its intent to do so and Parent shall have 10 days thereafter to give its consent to such notice from each Indemniteeelection. If Parent consents to the Company's election, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim)Indemnitee and Parent will cooperate, and each Indemnitee shall cooperate at the expense of the Company, in the compromise or defense or settlement or compromise of against such Third-Third Party Claim. After notice from an Indemnifying If the Company elects not to compromise or defend the Third Party Claim or fails to each notify the Indemnitee and Parent of its election as herein provided, or if Parent reasonably denies its consent to assume responsibility for a Third-the Company's election to do so, the Parent may pay (without prejudice of any of its rights against the Company), compromise or defend such Third Party Claim. Notwithstanding the foregoing, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees Company and the Indemnifying Party such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election Parent may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-claim (unless the sole relief claimed by the Third Party Claim unless (iis monetary damages that are paid in full by the party settling or compromising such claim) such over the objection of the other parties; PROVIDED, HOWEVER, that consent to settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does shall not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents theretobe unreasonably withheld. In any event, Parent or the event any Indemnitee shall notify Company may participate, at their own expense, in the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free defense of any participation Third Party claim being conducted by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claimother.
(eb) Any claim on account of an Indemnifiable any Loss which does not result from a Third-Third Party Claim claim shall be asserted by written notice given by an the Indemnitee or Parent to each applicable Indemnifying Partythe Company. Each such Indemnifying Party The Company shall have a period of 30 days after the following receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response respond to the claimclaim contained therein. After notice from the Company to the Indemnitee and Parent of their intention to pay such Loss, the Company shall promptly remit payment therefor to the Indemnitee and shall not be liable to the Indemnitee or Parent for any legal expenses or other expenses incurred by the Indemnitee or Parent in connection therewith. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party the Company does not respond within such 30-day period, it shall be deemed to have rejected responsibility for such Loss. If the Company does not respond within the 30-day period or rejects such if the respond by rejecting the claim in whole or in part, each such the Indemnitee and Parent shall be free to pursue such remedies as may be available to such Party parties under applicable law or under this Agreement or any other agreement or arrangement between the Partieslaw.
(fc) In addition to any adjustments required pursuant to Section 5.4, if If the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by pursuant to this Agreement, be reduced by recovery, settlement any actual receipt of insurance proceeds or otherwiseother property received by the Indemnitee or Parent in respect of such Loss, the amount of such reduction, reduction less any expenses incurred in connection therewith, with obtaining such reduction shall promptly be repaid by each Indemnitee to each Indemnifying Partythe Company.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 1 contract
Sources: Merger Agreement (SLM Holding Corp)
Procedure for Indemnification. (a) If an Indemnitee An Indemnified Party shall receive notice or otherwise learn notify the Shareholder Representative in writing, with a copy to any counsel of which the Shareholder Representative may have notified Egghead in accordance with Section 11.3, reasonably promptly after the assertion by a person (including any governmental entity) who is not a party to this Agreement or to any of against the Transaction Documents Indemnified Party of any claim by a Third Party (a "Third Party Claim") in respect of which the Indemnified Party intends to base a Claim for indemnification hereunder, but the failure or delay so to notify the Shareholder Representative and any such counsel shall not relieve the Shareholders of any obligation or liability that they may have to the Indemnified Party, except to the extent that the Shareholder Representative demonstrates that its ability to defend or resolve such Third Party Claim is adversely affected thereby.
(i) Subject to the rights and duties of any insurer or other Third Party having potential liability therefor, the Shareholder Representative shall have the right, upon written notice given to the Indemnified Party within 30 days after receipt of the commencement by notice from the Indemnified Party of any Third Party Claim, to assume the defense or handling of such Third Party Claim, at the Shareholders' sole expense, in which case the provisions of Section 10.5(b)(ii) below shall govern.
(ii) The Shareholder Representative shall select counsel acceptable to the Indemnified Party in connection with conducting the defense or handling of such Third Party Claim, and the Shareholder Representative shall defend or handle such Third Party Claim in consultation with the Indemnified Party and shall keep the Indemnified Party timely apprised of the status of such Third Party Claim. Neither the Shareholder Representative nor any Shareholder shall, without the prior written consent of the Indemnified Party, agree to a settlement of any Third Party Claim, unless (A) the settlement provides an unconditional release and discharge of the Indemnified Party and the Indemnified Party is reasonably satisfied with such discharge and release and (B) Egghead shall not have reasonably objected to any such Person settlement on the ground that the circumstances surrounding the settlement could result in an Egghead Adverse Effect or a material adverse impact on the business, operations, assets, liabilities (absolute, accrued, contingent or otherwise), condition (financial or otherwise) or prospects of the Surviving Corporation. The Indemnified Party shall cooperate with the Shareholder Representative and shall be entitled to participate in the defense or handling of such Third Party Claim with its own counsel and at its own expense.
(i) If the Shareholder Representative does not give written notice to the Indemnified Party within 30 days after receipt of the notice from the Indemnified Party of any action (a “Third-Third Party Claim of the Shareholder Representative's election to assume the defense or handling of such Third Party Claim”, the provisions of Section 10.5(c)(ii) below shall govern.
(ii) The Indemnified Party may, at the Shareholders' expense (which shall be paid from time to time by the Shareholder Representative as such expenses are incurred by the Indemnified Party), select counsel in connection with respect to which an Indemnifying Party may be obligated to provide indemnification pursuant to this Agreement, each such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after becoming aware conducting the defense or handling of such Third-Third Party ClaimClaim and defend or handle such Third Party Claim in such manner as it may deem appropriate; provided, however, that the Indemnified Party shall keep the Shareholder Representative timely apprised of the status of such Third Party Claim and shall not settle such Third Party Claim without the prior written consent of the Shareholder Representative, which consent shall not be unreasonably withheld. If the Indemnified Party defends or handles such Third Party Claim, the Shareholder Representative shall cooperate with the Indemnified Party and shall be entitled to participate in the defense or handling of such Third Party Claim with its own counsel and at the expense of the Shareholders.
(d) If the Indemnified Party intends to seek indemnification hereunder, other than for a Third Party Claim, then it shall notify the Shareholder Representative, with a copy to any counsel of which the Shareholder Representative may have notified Egghead in accordance with Section 11.3, in writing within 60 days after its discovery of facts upon which it intends to base its Claim for indemnification hereunder (such date of discovery being the date on which Egghead's Chief Executive Officer or Chief Financial Officer obtains actual knowledge of such facts), but the failure of or delay so to notify the Shareholder Representative or any Indemnitee to give notice as required by this Section 5.5 such counsel shall not relieve each Indemnifying Party the Shareholders of its obligations under this Article Vany obligation or liability that the Shareholders may have to the Indemnified Party, except to the extent that each such Indemnifying Party is prejudiced by such failure to give notice. Such notice shall describe the Third-Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss Shareholder Representative demonstrates that has been or may be sustained by each such Indemnitee.
(b) An Indemnifying Party may elect its ability to defend or to seek to settle or compromise, at resolve such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel reasonably acceptable to each Indemnitee, any Third-Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee Claim is entitled to indemnification hereunder in respect of such Third-Party Claim. Within 30 days of the receipt of notice from an Indemnitee in accordance with Section 5.5(a) (or sooner, if the nature of such Third-Party Claim so requires), the Indemnifying Party shall notify each Indemnitee of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim), and each Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each Indemnitee of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees and the Indemnifying Party such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claimadversely affected thereby.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying The Indemnified Party shall have notify the Shareholder Representative, with a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition copy to any adjustments required pursuant to counsel of which the Shareholder Representative may have notified Egghead in accordance with Section 5.411.3, if of a Claim even though the amount thereof plus the amount of any Indemnifiable Loss shall, at any time subsequent to other Claims previously notified by the payment required by this Agreement, be reduced by recovery, settlement or otherwise, Indemnified Party aggregate less than the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying PartyThreshold.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 1 contract
Sources: Merger Agreement (Egghead Inc /Wa/)
Procedure for Indemnification. (a) If an any Indemnitee shall receive receives notice or otherwise learn of the assertion by a person (including any governmental entity) who is not a party to this Agreement or to any of the Transaction Documents of any claim or of the commencement by any such Person of any action (a “Third-Third Party Claim”) Claim with respect to which an Indemnifying Party may be is obligated under this Agreement to provide indemnification pursuant to this Agreementindemnification, each such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after becoming aware of such Third-Third Party Claim; provided, however, that the failure of any Indemnitee to -------- -------- give notice as required by provided in this Section 5.5 4.04 shall not relieve each any Indemnifying Party of its obligations under this Article VIV, except to the extent that each such Indemnifying Party is actually prejudiced by such failure to give notice. Such notice shall describe the Third-such Third Party Claim in reasonable detaildetail and, and if practicable, shall indicate the estimated amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
(b) An Indemnifying Party may elect to defend or to seek to settle or compromiseParty, at such Indemnifying Party’s 's own expense and through counsel chosen by such Indemnifying Party’s own Party (which counsel shall be reasonably acceptable satisfactory to each the Indemnitee), may elect to defend any Third-Third Party Claim. If an Indemnifying Party elects to defend a Third Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect then, within fifteen Business Days after receiving notice of such Third-Third Party Claim. Within 30 days of the receipt of notice from an Indemnitee Claim or sooner (but in accordance with Section 5.5(ano event less than five Business Days) (or sooner, if the nature of such Third-Third Party Claim so requires), the such Indemnifying Party shall notify each the Indemnitee of its election whether intent to assume responsibility for do so. Such Indemnitee shall thereupon use reasonable efforts to make available to such Third-Party Claim (provided that if Indemnifying Party, at such Indemnifying Party's expense, such assistance in support of the prosecution or defense of such litigation as the Indemnifying Party does may reasonably request, including without limitation, the right to assert in the name of the Indemnitee such rights, claims, counterclaims or defenses that such Indemnitee would be or would have been permitted to assert in such litigation or in the prosecution of a claim or counterclaim against a Third Party or in defense against such Third Party Claim had the Distribution not so notify each occurred. The Indemnitee will execute a power of its election within 30 days after receipt attorney in favor of such notice from each Indemnitee, the Indemnifying Party with respect to such Third Party Claims in substantially the form attached hereto as Exhibit 4.03(e). Such Indemnifying Party shall be deemed to have elected not to assume responsibility for pay such ThirdIndemnitee's reasonable out-Party Claim)of-pocket expenses incurred in connection with such cooperation consistent with the provisions of Article VI. Except as provided herein, and each Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Party Claim. After after notice from an Indemnifying Party to each an Indemnitee of its election to assume responsibility for the defense of a Third-Third Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V IV for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees and the Indemnifying Party such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any an Indemnifying Party elects not to assume responsibility for a Third-Party Claim defend against a
(which election may be made only in c) Notwithstanding the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemniteeforegoing, the Indemnifying Party shall be deemed not, without the prior written consent of the Indemnitee, settle or compromise any Third Party Claim or consent to have elected option (ii)the entry of any judgment which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnitee of a written release from all Liability in respect of such Third Party Claim.
(cd) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Third Party Claim, each the related Indemnitee shall make available to such Indemnifying Party any personnel and or any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss arising out of or due to the failure to pay, perform or discharge in due course its respective Liabilities by any member of the Indemnifying Party's Group who has an obligation with respect thereto but which does not result from a Third-Third Party Claim shall be asserted by written notice given by an the Indemnitee to each applicable the related Indemnifying Party. Each such Such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claimrespond thereto. If each such Indemnifying Party does not so notify each such Indemnitee during respond within such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party party under applicable law or under Article VII of this Agreement or any other agreement or arrangement between the PartiesAgreement.
(f) In addition to any adjustments required pursuant to Section 5.4, if If the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each the Indemnitee to each the Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Third Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Third Party Claim against any claimant or plaintiff asserting such Third-Third Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim, including without limitation, permitting the Indemnifying Party to bring suit against such Third Party in the name of the Indemnitee.
Appears in 1 contract
Sources: Distribution Agreement (Monsanto Co)
Procedure for Indemnification. (a) If an Indemnitee shall receive notice Any party hereto or otherwise learn of the assertion by a person (including any governmental entity) who is not a party to this Agreement or to any of its Affiliates seeking indemnification hereunder (in this context, the Transaction Documents “Indemnified Party”) shall give written notice (the “Claim Notice”) of any claim or for indemnification under this Section 10 to the other party (with the Stockholder Representative (as defined below) acting on behalf of, and receiving all notices on behalf of, Seller, the Stockholders and Softworks for purposes of this Section 10.5) (the commencement by “Indemnifying Party”) as promptly as practicable, but in any event: (i) if such Person Indemnification Claim relates to the assertion against an Indemnified Party of any action claim by a third party (a “Third-Party Claim”) with respect to which an Indemnifying Party may be obligated to provide indemnification pursuant to this Agreement), each such Indemnitee shall give each such Indemnifying Party written notice thereof promptly within 30 days after becoming aware the assertion of such Third-Party Claim, or (ii) if such Indemnification Claim is not in respect of a Third-Party Claim, within 30 days after the discovery of facts upon which the Indemnified Party intends to base an Indemnification Claim for indemnification pursuant to Section 10 hereof; provided, however, that the failure of any Indemnitee or delay to give notice as required by this Section 5.5 so notify the Indemnifying Party shall not relieve each the Indemnifying Party of its obligations under this Article V, any obligation or liability that the Indemnifying Party may have to the Indemnified Party except to the extent that each such the Indemnifying Party demonstrates that the Indemnifying Party’s ability to defend or resolve such Indemnification Claim is actually prejudiced by thereby. Any such failure to give notice. Such notice Claim Notice shall describe the Third-Party facts and circumstances on which the asserted Indemnification Claim in reasonable detailis based, the amount thereof, if then ascertainable, and, if not then ascertainable, the estimated maximum amount thereof, and shall indicate the amount (estimated if necessary) of provisions in the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.Agreement on which the Indemnification Claim is based. ASSET PURCHASE AGREEMENT ONYX SOFTWARE CORPORATION
(b) An (i) Subject to the rights of or duties to any insurer or other third party having potential liability therefor, the Indemnifying Party may elect shall have the right, upon written notice given to defend or to seek to settle or compromise, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel reasonably acceptable to each Indemnitee, the Indemnified Party within 30 days after receipt of the Claim Notice from the Indemnified Party of any Third-Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect of such Third-Party Claim. Within 30 days of the receipt of notice from an Indemnitee in accordance with Section 5.5(a) (or sooner, if the nature of such Third-Party Claim so requires), the Indemnifying Party shall notify each Indemnitee of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim), and each Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each Indemnitee of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees and the Indemnifying Party such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect handling of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Partysole expense, in prosecuting any subrogated right or claimwhich case the provisions of Section 10.5(b)(ii) hereof shall govern.
Appears in 1 contract
Procedure for Indemnification. (a) If A party claiming indemnification under Section 14.1 (in this Article an Indemnitee “Indemnitee”) shall receive give notice to the party or otherwise learn of the assertion by a person parties against which or against whom indemnification is claimed (including any governmental entity) who is not a party to in this Agreement or to any of the Transaction Documents of any claim or of the commencement by any such Person of any action (a Article an “Third-Party ClaimIndemnitor”) with respect to which an Indemnifying Party may be obligated to provide indemnification pursuant to this Agreement, each such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after reasonable promptness upon becoming aware of the claim or other facts upon which a claim for indemnification will be based. The written notice shall set forth such Third-Party Claim; provided, however, that the failure of any Indemnitee to give notice information and be accompanied by such documentation with respect thereto as required by this Section 5.5 shall not relieve each Indemnifying Party of its obligations under this Article V, except is then reasonably available to the extent that each such Indemnifying Party is prejudiced by such failure to give notice. Such notice shall describe the Third-Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
(b) An Indemnifying Party may elect The Indemnitor shall have the right, exercisable by notice to defend or to seek to settle or compromise, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel reasonably acceptable to each the Indemnitee, given within ten (10) days following receipt of the aforesaid notice from the Indemnitee, to undertake and assume control of the defence of any Third-such claim asserted by a third party (in this Article, a “Third Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect of such Third-Party Claim. Within 30 days of the receipt of notice from an Indemnitee in accordance with Section 5.5(a) (or sooner, if the nature of such Third-Party Claim so requires”), including the Indemnifying Party shall notify each Indemnitee right of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim)compromise or settlement thereof, and each the Indemnitee shall cooperate co operate in the defense or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each Indemnitee of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance defence and make available all information and documentation requested by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection Indemnitor with the defense thereofrespect thereto; provided, however, that if that:
(i) the defendants in Indemnitor shall first deliver to the Indemnitee written acceptance of liability for indemnification with respect to any such claim include both Third Party Claim and written consent to be joined as a party to any Legal Proceeding relating thereto;
(ii) the Indemnifying undertaking and assumption of control of the defence, compromise or settlement of any such Third Party and one Claim shall, by its terms, be without expense, cost or more Indemnitees and in other liability to the Indemnitee; and
(iii) the Indemnitor shall at the Indemnitee's request furnish it with reasonable security against any expenses, costs or other liabilities to which it may be or may become exposed by reason of the defence, compromise or settlement of any such Indemnitees’ reasonable judgment there exists a conflict Third Party Claim.
(c) Upon the assumption of interest between such Indemnitees and control by the Indemnifying Party such Indemnitees Indemnitor as aforesaid, the Indemnitor shall have diligently proceed with the right to employ separate counsel and in that event the reasonable fees and expenses defence, compromise or settlement of such separate counsel (but not more than one separate Third Party Claim at the Indemnitor's sole expense, including employment of counsel reasonably satisfactory to the Indemnifying Party) Indemnitor; and in connection therewith, the Indemnitee shall co operate fully with, but at the expense of, the Indemnitor, to make available to the Indemnitor all pertinent information, documentation and witnesses under the Indemnitee's control and to make such assignments and take such other steps as in the opinion of counsel for the Indemnitor are necessary or desirable to enable the Indemnitor to conduct such defence, provided that the Indemnitee shall be paid by each such Indemnifying Party. If entitled to reasonable security from the Indemnitor for any Indemnifying Party elects not expenses, costs or other liabilities to assume responsibility for a Third-Party Claim (which election it may be made only in or may become exposed by reason of such co operation.
(d) The final determination of any such Third Party Claim, including all related expenses, costs and other liabilities, shall be binding and conclusive upon the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 parties hereto as to the validity or 5.3invalidity, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Third Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claimIndemnitor hereunder.
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Procedure for Indemnification. If a complaint, claim or legal action is brought or made by a third party (a"Third Party Claim") If an Indemnitee as to which the Company or Investor is entitled to indemnification hereunder ("Indemnified Party"), the Indemnified Party shall receive give written notice of such Third Party Claim to the indemnifying party ("Indemnifying Party") promptly after the Indemnified Party receives notice thereof, which notice shall include a copy of any letter, complaint or otherwise learn similar writing received by the Indemnified Party; provided, however, that any failure to provide, or delay in providing such notification shall not constitute a bar or defense to indemnification except to the extent the Indemnifying Party has suffered actual material loss thereby. The Indemnifying Party shall have the right to assume the defense of such Third Party Claim with counsel reasonably satisfactory to the Indemnified Party. After notice from the Indemnifying Party to the Indemnified Party of the assertion Indemnifying Party's election so to assume the defense of such Third Party Claim, the Indemnifying Party shall not be liable to the Indemnified Party for any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense of such Third Party Claim except as hereinafter provided. If the Indemnifying Party elects to assume such defense and selects such counsel, the Indemnified Party may participate in such defense through its own separate counsel, but the fees and expenses of such counsel shall be borne by the Indemnified Party unless (i) otherwise specifically agreed in writing by the Indemnifying Party, or (ii) counsel selected by the Indemnifying Party determines that because of a person conflict of interest between the Indemnifying Party and the Indemnified Party such counsel for the Indemnifying Party cannot adequately represent both parties in conducting the defense of such action (including any governmental entity) who is in which case the Indemnifying Party shall not a party have the right to this Agreement or to any direct the defense of such Third Party Claim on behalf of the Transaction Documents Indemnified Party). In such event, however, the Indemnifying Party shall not be held liable for any settlement effected without the written consent of such Indemnifying Party. The failure of the Indemnifying Party to notify an Indemnified Party of its election to defend such Third Party Claim within twenty-one (21) days after notice thereof was given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its rights to defend such Third Party Claim. If the Indemnifying Party assumes the defense of such Third Party Claim, the obligations of the Indemnifying Party shall include taking all steps reasonably necessary in the defense of such Third Party Claim and holding the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement or any judgment in connection with such claim or of litigation, subject to the commencement by any such Person of any action (a “Third-Party Claim”) with respect to which an limitations on liability set forth herein. The Indemnifying Party may be obligated to provide indemnification pursuant to this Agreement, each not settle such Indemnitee shall give each Third Party Claim without the consent of the Indemnified Party unless such settlement involves solely the payment of money and the giving of customary releases. If the Indemnifying Party written notice thereof promptly after becoming aware does not assume the defense of such Third-Third Party ClaimClaim in accordance with this Section, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate; provided, however, that the failure of any Indemnitee to give notice as required by this Section 5.5 shall Indemnified Party may not relieve each Indemnifying Party of its obligations under this Article V, except to the extent that each settle such Indemnifying Party is prejudiced by such failure to give notice. Such notice shall describe the Third-Third Party Claim in reasonable detail, and shall indicate without the amount (estimated if necessary) prior written consent of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
(b) An Indemnifying Party may elect to defend or to seek to settle or compromise, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel reasonably acceptable to each Indemnitee; provided, any Third-Party Claimfurther, provided that the Indemnifying Party must confirm may not withhold such consent unless it has provided security of a type and in writing that it agrees that each Indemnitee is entitled an amount reasonably acceptable to the Indemnified Party for the payment of its indemnification hereunder in obligations with respect of to such Third-Third Party Claim. Within 30 days of the receipt of notice from an Indemnitee in accordance with Section 5.5(a) (or sooner, if the nature of such Third-Party Claim so requires), the The Indemnifying Party shall notify each Indemnitee of its election whether to assume responsibility promptly reimburse the Indemnified Party for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt amount of such notice from each Indemniteesettlement, or for the Indemnifying Party shall be deemed amount of any judgment rendered with respect to have elected not to assume responsibility for such Third-Party Claim), and each Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each Indemnitee of its election to assume responsibility for a Third-Third Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V and for any legal or other all costs and expenses (except expenses approved in advance incurred by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, that if the defendants in any such claim include both the Indemnifying Indemnified Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees and the Indemnifying Party such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of the such claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 subject to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee of a written release from all limitations on liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claimset forth herein.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 1 contract
Procedure for Indemnification. Subject to the other terms of this Article VII:
(a) If an Indemnitee shall receive notice or otherwise learn of the assertion by a person (including any governmental entity) who is not a party to this Agreement or facts that give rise to any indemnification hereunder will involve any Third-Party Claim, the Indemnified Party will give the party obligated to provide indemnity hereunder (“Indemnifying Party”) written notice of such claim (the Transaction Documents of any claim or of the commencement by any such Person of any action (a “Third-Party ClaimNotice”) with respect to which an Indemnifying promptly after the Indemnified Party may be obligated to provide indemnification pursuant to this Agreement, each such Indemnitee shall give each such Indemnifying Party will have received written notice thereof promptly after becoming aware from the third party making such claim. Thereafter, the Indemnified Party will deliver to the Indemnifying Party copies of such all notices and documents (including court papers) received by the Indemnified Party relating to the Third-Party Claim; provided, however, that the . The Indemnified Party’s failure of any Indemnitee to give notice as required by this Section 5.5 shall or delay in providing Third-Party Notice will not relieve each the Indemnifying Party of its obligations under this Article V, VII except to the extent that each such the Indemnifying Party is materially prejudiced by such failure as a result thereof.
(b) The Indemnifying Party will have twenty (20) days from receipt of the Third-Party Notice to give notice. Such provide the Indemnified Party with notice shall describe that it wishes to assume the defense of the Third-Party Claim and acknowledges liability for such Damages, in reasonable detail, and shall indicate which event Indemnified Party will have the amount (estimated if necessary) of right to participate in the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
(b) An Indemnifying Party may elect to defend or to seek to settle or compromise, defense at such Indemnifying Party’s its own expense and by such Indemnifying Party’s own counsel reasonably acceptable to each Indemnitee, any Third-Party Claim, provided that expense. If the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect of such Third-Party Claim. Within 30 days of the receipt of notice from an Indemnitee in accordance with Section 5.5(a) (or sooner, if the nature of such Third-Party Claim so requires)is in the form of a pleading requiring an answer, the other party will give such notice at least five (5) Business Days prior to the due date of the answer or other response to the pleading. If the Indemnifying Party shall notify each Indemnitee of its election whether fails to assume responsibility for such Third-give the Indemnified Party Claim (timely notice as provided that if the Indemnifying herein, Indemnified Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim), and each Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each Indemnitee of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees and the Indemnifying Party such Indemnitees shall will have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue against such Third-Party Claim.
(ec) Any claim If the Indemnifying Party chooses to defend a Third-Party Claim, Indemnified Party will cooperate in the defense thereof. Such cooperation will include the retention and the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third-Party Claim, making relevant employees or agents available on account a mutually convenient basis to provide additional information and explanation of an Indemnifiable Loss which does any material provided hereunder. Whether or not result from the Indemnifying Party assumes the defense of a Third-Party Claim, Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, such Third-Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheld). If the Indemnifying Party assumes the defense of a Third-Party Claim, the Indemnifying Party will not agree to any settlement, compromise or discharge of a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying without Indemnified Party’s response prior written consent (not to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Partiesunreasonably withheld).
(fd) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent Notwithstanding anything herein to the payment required by this Agreement, be reduced by recovery, settlement or otherwisecontrary, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party will not be entitled to any Indemnitee in connection with any Third-assume control of the defense of a Third Party Claim, and will pay the reasonable fees and expenses of legal counsel retained by the Indemnified Party (subject to the limitations set forth in this Article VII as applicable when a Purchaser Indemnified Person is the Indemnified Party): (i) with respect to any portion of the claim that involves injunctive or other equitable relief or relates to any criminal or regulatory violation; (ii) if the Indemnified Party reasonably believes that a conflict of interest exists or could reasonably arise which, under applicable principles of legal ethics, could prohibit a single legal counsel from representing both the parties in such proceeding, other than a conflict which may exist due to the underlying nature of the duty to indemnify; or (iii) if a court of competent jurisdiction rules that the Indemnifying Party shall be subrogated has failed or is failing to and shall stand prosecute or defend such claim. In such event, the Indemnified Party will provide notice to the Indemnifying Party at least five (5) Business Days in advance of retaining legal counsel to defend the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Third Party Claim. Such Indemnitee Failure to provide such notice shall cooperate with such Indemnifying Party in a reasonable manner, and at not affect the cost and expense of such Indemnifying Indemnified Party, in prosecuting any subrogated right or claim’s rights under this subsection.
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Procedure for Indemnification. (a) If an Indemnitee The Indemnified Party shall receive give written notice or otherwise learn of (the assertion by a person (including any governmental entity"Claim ----- Notice") who is not a party to this Agreement or to any of the Transaction Documents of any claim or of for indemnification under this Article 6 (a "Claim") to ------ ----- the commencement by indemnifying party as promptly as practicable, but in any event: (i) if such Person Claim relates to the assertion against an Indemnified Party of any action claim by a third party (a “Third-"Third Party Claim”"), within 30 days after the assertion of such ----------------- Third Party Claim, or (ii) with if such Claim is not in respect to of a Third Party Claim, within 30 days after the Purchaser knows about all relevant details and facts upon which an Indemnifying Party may be obligated to provide the Claim for indemnification is or could have been based pursuant to this Agreement, each such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after becoming aware of such Third-Party ClaimArticle 6 hereof; provided, however, that the failure of any Indemnitee or delay to give notice as required by this Section 5.5 so notify the indemnifying party shall not relieve each Indemnifying the indemnifying party of any obligation or liability that the indemnifying party may have to the Indemnified Party of its obligations under this Article V, except to the extent that each the indemnifying party demonstrates that the indemnifying parties' ability to defend or resolve such Indemnifying Party Claim is prejudiced by adversely affected thereby. Any such failure to give notice. Such notice Claim Notice shall describe the Third-Party facts and circumstances on which the asserted Claim in reasonable detailfor indemnification is based, the amount thereof if then ascertainable and, if not then ascertainable, the estimated maximum amount thereof, and shall indicate the amount (estimated if necessary) of provisions in the Indemnifiable Loss that has been or may be sustained by each such IndemniteeAgreement on which the Claim is based.
(bi) An Indemnifying Party may elect Subject to defend the rights of or duties to seek to settle any insurer or compromise, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel reasonably acceptable to each Indemnitee, any Third-Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect of such Third-Party Claim. Within 30 days of the receipt of notice from an Indemnitee in accordance with Section 5.5(a) (or sooner, if the nature of such Third-Party Claim so requires)other third party having potential liability therefor, the Indemnifying indemnifying party shall have the right, upon written notice given to the Indemnified Party shall notify each Indemnitee of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such the notice from each Indemniteethe Indemnified Party of any Third Party Claim, to assume the Indemnifying defense or handling of such Third Party Claim, at the indemnifying party's sole expense, in which case the provisions of Section 6.5(b)(ii) hereof shall govern.
(ii) The indemnifying party shall select counsel reasonably acceptable to the Indemnified Party in connection with conducting the defense or handling of such Third Party Claim, and the indemnifying party shall defend or handle the same in consultation with the Indemnified Party and shall keep the Indemnified Party timely apprised of the status of such Third Party Claim. The indemnifying party shall not, without the prior written consent of the Indemnified Party, agree to a settlement of any Third Party Claim, unless (A) the settlement provides an unconditional release and discharge of the Indemnified Party and the Indemnified Party is reasonably satisfied with such discharge and release and (B) the Indemnified Party shall be deemed not have reasonably objected to have elected not to assume responsibility for any such Third-Party Claimsettlement on the ground that the circumstances surrounding the settlement could result in an adverse impact on the business, operations, assets, liabilities (absolute, accrued, contingent or otherwise), and each Indemnitee condition (financial or otherwise) or prospects of the Indemnified Party. The Indemnified Party shall cooperate with the indemnifying party and shall be entitled to participate in the defense or settlement or compromise handling of such Third-Third Party Claim. After Claim with its own counsel and at its own expense.
(i) If the indemnifying party does not give written notice to the Indemnified Party within 30 days after receipt of the notice from an Indemnifying the Indemnified Party to each Indemnitee of its any Third Party Claim of the indemnifying party's election to assume responsibility for a Third-the defense or handling of such Third Party Claim, such Indemnifying the provisions of Section 6.5(c)(ii) hereof shall govern.
(ii) The Indemnified Party may, at the indemnifying party's expense (which shall not be liable paid from time to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance time by the Indemnifying Party) subsequently indemnifying party as such expenses are incurred by each such Indemnitee the Indemnified Party), select counsel in connection with conducting the defense thereofor handling of such Third Party Claim and defend or handle such Third Party Claim in such manner as it may deem appropriate; provided, however, that if the defendants in any such claim include both Indemnified Party shall keep the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict indemnifying party timely apprised of interest between such Indemnitees and the Indemnifying Party such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses status of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any Indemnifying Party elects not to assume responsibility for a Third-Third Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to compromise or and shall not settle such Third-Third Party Claim without the prior written notice to each such Indemnifying Partyconsent of the indemnifying party, which consent shall have not be unreasonably withheld. If the option within fifteen days following Indemnified Party defends or handles such Third Party Claim, the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection indemnifying party shall cooperate with the claim, or (ii) Indemnified Party and shall be entitled to reject the settlement and continue to refrain from participation participate in the defense or handling of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Third Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, its own counsel and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claimits own expense.
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Procedure for Indemnification. (a) If an In the event that either a Purchaser Indemnitee or a Seller Indemnitee becomes aware of a fact, condition or event for which indemnification is provided under this Section 7, such party seeking indemnification (the “Indemnified Party”) shall receive with reasonable promptness deliver a written notice to the other party (the “Indemnifying Party”) specifying the facts constituting the basis for, and the amount (if known or otherwise learn a reasonable estimate thereof) of the assertion by claim asserted (“Claim Notice”). Failure to deliver a person (including any governmental entity) who is not a party to this Agreement or to any of the Transaction Documents of any claim or of the commencement by any such Person of any action (a “Third-Party Claim”) Claim Notice with respect to which an a claim in a timely manner as specified in the preceding sentence shall not release the Indemnifying Party from any of its obligations under this Section 7, except to the extent the Indemnifying Party is materially prejudiced by such failure.
(b) When an Indemnified Party receives notice of any claims made by third parties (“Third Party Claims”), which is or may be obligated the basis of a claim for indemnification hereunder, the Indemnified Party shall promptly deliver a Claim Notice to provide indemnification pursuant to this Agreement, each such Indemnitee shall give each such the Indemnifying Party written notice thereof promptly after becoming aware of such Third-Party ClaimParty; provided, however, that the failure of any Indemnitee the Indemnified Party to give notice promptly deliver a Claim Notice related to a Third Party Claim as required by this Section 5.5 provided herein shall not relieve each the Indemnifying Party of any of its obligations under this Article V, except hereunder unless and only to the extent that each such the Indemnifying Party is shall have been prejudiced by such failure thereby. Upon receipt of a Claim Notice from the Indemnified Party with respect to give notice. Such notice shall describe a Third Party Claim, the Third-Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
(b) An Indemnifying Party may elect may, but shall not be required to, assume the defense of such Third Party Claim. If the Indemnifying Party elects to defend or to seek to settle or compromiseundertake the defense of any Third Party Claim, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own it shall use counsel of its choice but reasonably acceptable to each Indemniteethe Indemnified Party, any Third-Party Claim, provided that and the Indemnifying Party must confirm shall pay all reasonable costs and expenses thereof (including the reasonable costs and expenses incurred by the Indemnified Party in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect connection with the defense of such Third-Third Party Claim. Within 30 days of Claim prior to the receipt of notice from an Indemnitee in accordance with Section 5.5(a) (or sooner, if the nature assumption of such Third-Party Claim so requires)defense by the Indemnifying Party) and shall be fully responsible for the outcome thereof, subject to any applicable limitations set forth in Section 7.4 and that in such case, the Indemnifying Party shall notify each Indemnitee have no obligation to pay any further costs or expenses of legal counsel of the Indemnified Party thereafter incurred in connection with such defense. The Indemnifying Party shall give notice to the Indemnified Party as to its election whether intention to assume responsibility for the defense of any Third Party Claims within thirty (30) days after the date of receipt of the Indemnified Party’s Claim Notice in respect of such Third-Third Party Claim (provided that if the Claims. If an Indemnifying Party does not so notify each Indemnitee not, within thirty (30) days after the Indemnified Party’s Claim Notice is given, furnish notice to the Indemnified Party of its election within 30 days after receipt assumption of such notice from each Indemniteethe defense of the Third Party Claims, the Indemnifying Party shall be deemed to have elected not waived its right to assume responsibility for such Third-Party Claim), and each Indemnitee shall cooperate in control the defense or settlement or compromise thereof. If the Indemnified Party assumes the defense of such Third-any Third Party Claim. After notice from an Claims because of the failure of the Indemnifying Party to each Indemnitee of its election to assume responsibility for a Third-Party Claimdo so in accordance with this Section 7.5(b), such Indemnifying Party shall not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and it may do so in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees manner as it may deem appropriate, and the Indemnifying Party shall pay all costs and expenses of such Indemnitees defense, subject however to any applicable limitations set forth in Section 7.4. The Indemnifying Party shall have no liability with respect to any compromise or settlement of a Third Party Claim that is effected without its prior written consent (which consent shall not be unreasonably withheld or delayed).
(c) Notwithstanding the provisions of Section 7.5(b), with respect to any Third Party Claim that the Indemnifying Party is defending, the Indemnified Party shall have the right to employ retain separate counsel to represent it and in that event the Indemnifying Party shall pay the reasonable fees and expenses of such separate counsel, but only if, and to the extent that, (i) there is a conflict of interest that makes it reasonably necessary for separate counsel to represent the Indemnified Party and the Indemnifying Party; (but ii) the actual or potential defendants in, or targets of, any such Third Party Claim include both the Indemnifying Party and the Indemnified Party, and the Indemnified Party shall have reasonably concluded that there may be legal defenses available to the Indemnified Party which are different from or additional to those available to the Indemnifying Party (in which case the Indemnifying Party shall not more than one separate have the right to assume the defense of such Third Party Claim on behalf of the Indemnified Party); (iii) the Indemnifying Party shall not have engaged counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable amount of time after the Indemnified Party’s Claim Notice is given; or (iv) the Indemnifying Party shall authorize, in writing, the Indemnified Party to engage separate counsel at the Indemnifying Party’s expense.
(d) shall be paid If the Indemnified Party desires to settle any Third Party Claim (whether or not contested by each such the Indemnifying Party), the Indemnified Party shall advise the Indemnifying Party in writing of the amount it proposes to pay in settlement thereof (the “Proposed Settlement”). If such Proposed Settlement is unsatisfactory to the Indemnifying Party, it shall have the right, at its expense, reasonably to contest (or continue to contest) such Third Party Claim by giving written notice of such election to the Indemnified Party within fifteen (15) days after the Indemnifying Party’s receipt of the advice of the Proposed Settlement. If the Indemnifying Party does not deliver such written notice within fifteen (15) days after receipt of such advice, or if the Indemnifying Party, after having given such notice to the Indemnified Party, fails to defend, settle or pay such Third Party Claim, the Indemnified Party may offer the Proposed Settlement to the third party making such Third Party Claim. If the Proposed Settlement is not accepted by the party making such Third Party Claim, any new Proposed Settlement figure which the Indemnified Party may wish to present to the party making such Third Party Claim shall first be presented to the Indemnifying Party who shall have the right, subject to the conditions set forth in this Section 7.5(d), reasonably to contest such Third Party Claim. In all such events, the Indemnifying Party shall indemnify the Indemnified Party and hold it harmless against and from any and all costs of defense, payment, or settlement, including reasonable attorneys’ fees incurred in connection therewith, subject, however, to any applicable limitations set forth in Section 7.4.
(e) The Indemnifying Party may settle any Third Party Claim only if it has agreed to contest the claim in accordance with Section 7.5(b). If any Indemnifying Party elects not desires to assume responsibility for a Third-settle any Third Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an IndemniteeClaim, the Indemnifying Party shall be deemed to have elected option not, without the Indemnified Party’s prior written consent (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party consent shall not be unreasonably withheld, delayed, or conditioned), (i) settle or compromise such Proceeding, claim or demand, or consent to the entry of any Third-Party Claim unless (i) such settlement or compromise contemplates judgment which does not include as an unconditional term thereof the giving delivery by such the claimant or plaintiff to each Indemnitee the Indemnified Party of a written release from all liability in respect of such Third-Party ClaimProceeding, and claim or demand or (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept settle or compromise any such settlement Proceeding, claim or compromisedemand, each such Indemnitee may continue in any manner that would be reasonably likely to contest such Third-adversely affect the Indemnified Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date other than as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss money damages or other money payments which does not result from a Third-Party Claim shall be asserted are fully indemnified against by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition the event that the loss, claim or other Liability that gave rise to the right to receive indemnification (i) is recovered by the Indemnified Party pursuant to any adjustments required pursuant indemnification agreement with any third party, or source of reimbursement through any third party, or any insurance maintained by or for the benefit of the Indemnified Party or (ii) results in a Tax benefit to Section 5.4the Indemnified Party, if the amount of any Indemnifiable Loss shall, at any time subsequent recovery pursuant to the payment required by this Agreement, Section 7 will be reduced by recovery, settlement or otherwise, the amount of (A) any such reductionindemnification, less reimbursement or insurance payments paid or available to the Indemnified Party and (B) any expenses incurred in connection therewithsuch Tax benefits actually received, shall promptly be repaid by each Indemnitee to each Indemnifying Partyas appropriate.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 1 contract
Sources: Stock Purchase Agreement (Eastern Insurance Holdings, Inc.)
Procedure for Indemnification. (a) If an Indemnitee An Indemnified Party shall receive give written notice or otherwise learn (the "Claim Notice") of any Claim for indemnification under this Article VIII to the Shareholder Representative reasonably promptly after the assertion by a person (including any governmental entity) who is not a party to this Agreement or to any of the Transaction Documents against an Indemnified Party of any claim or of the commencement by any such Person of any action a third party (a “Third-"Third Party Claim”) with "), or, if such Claim is not in respect of a Third Party Claim, reasonably promptly after the discovery of facts upon which the Indemnified Party intends to which an Indemnifying Party may be obligated to provide base a Claim for indemnification pursuant to this Agreement, each such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after becoming aware of such Third-Party ClaimArticle VIII hereof; provided, however, that the failure of any Indemnitee or delay to give notice as required by this Section 5.5 so notify the Shareholder Representative shall not relieve each Indemnifying the Shareholder Representative of any obligation or liability that the Shareholder Representative may have to the Indemnified Party of its obligations under this Article V, except to the extent that each the Shareholder Representative demonstrates that the indemnifying parties' ability to defend or resolve such Indemnifying Party Claim is prejudiced by adversely affected thereby. Any such failure to give notice. Such notice Claim Notice shall describe the Third-Party facts and circumstances on which the asserted Claim in reasonable detail, for indemnification is based and shall indicate specify how such Indemnified Party intends to recover such funds pursuant to this Agreement and the basis for the determination of the amount (estimated if necessary) of which the Indemnifiable Loss that has been or may be sustained by each such IndemniteeIndemnified Party intend to recover.
(b) An Indemnifying Party may elect to defend or to seek to settle or compromiseIf, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel reasonably acceptable to each Indemnitee, any Third-Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect of such Third-Party Claim. Within within 30 days of the receipt by the Shareholder Representative of notice a Claim Notice, the Shareholder Representative contests in writing to the Indemnified Party that Losses identified in such Claim Notice constitute indemnifiable Claims (the "Representative Notice"), then the Indemnified Party and the Shareholder Representative, acting in good faith, shall attempt to reach agreement with respect to the contested portions of such Claims. Unless a Claim is contested within such 30-day period, the Indemnified Party shall, subject to the other terms of this Article VIII, be paid the amount of the Losses related to such Claim or the uncontested portion thereof. The Shareholder Representative shall not object to any Claim unless (i) it believes in good faith that the Indemnified Party is not entitled to be indemnified with respect to the Losses specified therein, or (ii) it lacks sufficient information to assess the validity or amount of the Claim. If the Shareholder Representative objects to a Claim on the basis that it lacks sufficient information, it shall promptly request from an Indemnitee the Indemnified Party any additional information reasonably necessary in order for it to assess such Claim and the Indemnified Party shall, to the extent the Indemnified Party reasonably can, provide additional information reasonably requested. Upon receipt of such additional information, the Shareholder Representative shall review it as soon as reasonably practicable and notify the Indemnified Party of any withdrawal or modification of the objection. If the Indemnified Party and the Shareholder Representative are unable to reach agreement with respect to any contested Claims within 45 days of the delivery of the Representative Notice, the matter shall be settled by binding arbitration in Portland, Oregon as set forth below. All claims shall be settled in accordance with Section 5.5(a) the Commercial Arbitration Rules then in effect of the American Arbitration Association (or sooner, if the nature "AAA Rules"). The Shareholder Representative and the Indemnified Party shall each designate one arbitrator within 15 days after the termination of such Third45-day period. The Shareholder Representative and the Indemnified Party Claim so requires)shall cause such designated arbitrators mutually to agree upon and designate a third arbitrator; provided, however, that (i) failing such agreement within 70 days of delivery of the Representative Notice, the Indemnifying third arbitrator shall be appointed in accordance with the AAA Rules and (ii) if either the Shareholder Representative or the Indemnified Party fails to timely designate an arbitrator, the dispute shall be resolved by the one arbitrator timely designated. All of the fees and expenses of the arbitrators shall be paid from proceeds of the Pledged Shares in the event that Amaz▇▇.▇▇▇ ▇▇ the Purchaser is the prevailing party in a dispute, and all such fees and expenses shall be paid by Amaz▇▇.▇▇▇ ▇▇ the event that the shareholders or the Shareholder is the prevailing party in a dispute. The Shareholder Representative and the Indemnified Party shall notify each Indemnitee cause the arbitrators to decide the matter to be arbitrated pursuant hereto within 30 days after the appointment of its election the last arbitrator. The arbitrators' decision shall relate solely to whether the Indemnified Party is entitled to assume responsibility be indemnified for such Third-the contested Claim, or the contested portion thereof, pursuant to the applicable terms of this Agreement. The final decision of the majority of the arbitrators shall be furnished to the Shareholder Representative and the Indemnified Party Claim in writing and shall constitute the conclusive determination of the issue in question binding upon the Shareholder Representative, the Shareholders, and the Indemnified Party, and shall not be contested by any of them. Such decision may be used in a court of law only for the purpose of seeking enforcement of the arbitrators' decision.
(provided that if i) Subject to the Indemnifying rights of or duties to any insurer or other third party having potential liability therefor, the Shareholder Representative shall have the right, upon written notice given to the Indemnified Party does not so notify each Indemnitee of its election within 30 days after receipt of such the notice from each Indemniteethe Indemnified Party of any Third Party Claim, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim), and each Indemnitee shall cooperate in the defense or settlement or compromise handling of such Third-Party Claim. After notice from an Indemnifying Party to each Indemnitee of its election to assume responsibility for a Third-Third Party Claim, such Indemnifying Party at the indemnifying party's sole expense, in which case the provisions of Section 8.4(b)(ii) hereof shall not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereofgovern; provided, however, that if that, notwithstanding the defendants in foregoing, Amaz▇▇.▇▇▇ ▇▇▇ elect to assume the defense and handle any such claim include both Third Party Claim if it determines in good faith that the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees and the Indemnifying Party such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses resolution of such separate counsel Third Party Claim could result in an adverse impact on the business, operations, assets, liabilities (but not more than one separate absolute, accrued, contingent or otherwise), condition (financial or otherwise) or prospects of Amaz▇▇.▇▇▇, ▇▇ which case the provisions of Section 8.4(d)(ii) hereof shall govern.
(ii) The Shareholder Representative shall select counsel reasonably satisfactory acceptable to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any Indemnifying Indemnified Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with conducting the claimdefense or handling of such Third Party Claim, and the Shareholder Representative shall defend or handle the same in consultation with the Indemnified Party and shall keep the Indemnified Party timely apprised of the status of such Third Party Claim. The Shareholder Representative shall not, without the prior written consent of the Indemnified Party, agree to a settlement of any Third Party Claim, unless (iiA) to reject the settlement provides an unconditional release and continue discharge of the Indemnified Party and the Indemnified Party is reasonably satisfied with such discharge and release and (B) the Indemnified Party shall not have reasonably objected to refrain from participation any such settlement on the ground that the circumstances surrounding the settlement could result in an adverse impact on the business, operations, assets, liabilities (absolute, accrued, contingent or otherwise), condition (financial or otherwise) or prospects of the Indemnified Party. The Indemnified Party shall cooperate with the Shareholder Representative and shall be entitled to participate in the defense or handling of the claim, in which event each such Indemnifying Third Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve Claim with its own counsel and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within at its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Partyown expense.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of If (A) the amount Shareholder Representative does not give written notice to the Indemnified Party pursuant to Section 8.4(c)(i) within 30 days after receipt of the notice from the Indemnified Party of any offer Third Party Claim of settlement the indemnifying party's election to assume the defense or compromise which each handling of such Indemnitee declined to accept and Third Party Claim or (B) Amaz▇▇.▇▇▇ ▇▇▇cts to assume the actual out-of-pocket amount each defense and the handling of such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Third Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise8.4(c)(ii), the amount provisions of such reduction, less any expenses incurred in connection therewith, Section 8.4(d)(ii) hereof shall promptly be repaid by each Indemnitee to each Indemnifying Partygovern.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 1 contract
Sources: Merger Agreement (Amazon Com Inc)
Procedure for Indemnification. (a) If an Indemnitee shall receive notice or otherwise learn of the assertion by a person (including including, without limitation, any governmental entity) who is not a party to this Agreement or to any of the Transaction Documents Ancillary Agreements of any claim or of the commencement by any such Person person of any action Action (a “Third-"Third Party Claim”") with respect to which an Indemnifying Party may be obligated to provide indemnification pursuant to this Agreement, each such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after becoming aware of such Third-Third Party Claim; provided, however, that the failure of any -------- Indemnitee to give notice as required by provided in this Section 5.5 4.04 shall not relieve each the related Indemnifying Party of its obligations under this Article VIV, except to the extent that each such Indemnifying Party is prejudiced by such failure to give notice. Such notice shall describe the Third-Third Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
(b) An Indemnifying Party may elect to defend or to seek to settle or compromise, at such Indemnifying Party’s 's own expense and by such Indemnifying Party’s 's own counsel reasonably acceptable to each Indemniteecounsel, any Third-Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect of such Third-Third Party Claim. Within 30 days of the receipt of notice from an Indemnitee in accordance with Section 5.5(a4.04(a) (or sooner, if the nature of such Third-Third Party Claim so requires), the Indemnifying Party shall notify each the related Indemnitee of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does elects not so notify each Indemnitee to defend or to seek to settle or compromise such Third Party Claim (which election may be made only in the event of its election within 30 days after receipt of such notice from each Indemnitee, a good faith assertion by the Indemnifying Party shall be deemed to have elected that a claim was inappropriately tendered under Section 4.01 or 4.02, as the case may be). Unless an Indemnifying Party elects not to assume responsibility for such Third-Party Claim), and each Indemnitee shall cooperate in the defense of or settlement to seek to settle or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each Indemnitee of its election to assume responsibility for a Third-Third Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V IV for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, howeverthat, that if the defendants in any -------- ---- such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ any Indemnitee's reasonable judgment there exists a conflict of interest between one or more of such Indemnitees and the such Indemnifying Party exists in respect of such claim, such Indemnitees shall have the right to employ separate counsel to represent such Indemnitees and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any an Indemnifying Party elects not to assume responsibility for defend, or elects not to seek to settle or compromise a Third-Third Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3Claim, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Third Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii)Claim.
(c) If an Indemnifying Party chooses to defend or to seek to compromise or settle any Third-Third Party Claim, each the related Indemnitee shall make available to such Indemnifying Party any personnel and or any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within settlement or compromise, and shall otherwise cooperate in the reasonable discretion defense, settlement or compromise of each such Indemnifying PartyThird Party Claim.
(d) Notwithstanding anything else in this Section 5.5 4.04 to the contrary, neither an Indemnifying Party nor an Indemnitee shall not settle or compromise any Third-Third Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each the Indemnitee or the Indemnifying Party, respectively, of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Third Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Third Party Claim shall be asserted by written notice given by an the Indemnitee to each applicable the related Indemnifying Party. Each such Such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claimrespond thereto. If each such Indemnifying Party does not so notify each respond within such Indemnitee during such 30-30 day period, such Indemnifying Party shall be deemed to have refused to accept accepted responsibility to make paymentpayment and shall have no further right to contest the validity of such claim. If each such Indemnifying Party does not respond within such 30-30 day period or and rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party party under applicable law or under this Agreement or any other agreement or arrangement between the Partieslaw.
(f) In addition to any adjustments required pursuant to Section 5.44.03, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each the Indemnitee to each the Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Third Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Third Party Claim against any claimant or plaintiff asserting such Third-Third Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
(h) All disputes arising out of or relating to this Agreement shall be resolved pursuant to the reference procedure set forth in California Code of Civil Procedure Sections 638 et seq. The parties hereby agree to submit -- --- to the jurisdiction of the Superior Court of the County of Los Angeles, State of California (the "Superior
Appears in 1 contract
Sources: Reorganization and Distribution Agreement (Vencor Inc)
Procedure for Indemnification. Any party seeking indemnification under this ARTICLE IX (aan "Indemnified Party") If will give each party from whom indemnification is being sought (each, an Indemnitee shall receive "Indemnifying Party") notice or otherwise learn of any matter for which such Indemnified Party is seeking indemnification, stating the amount of the assertion by Damages, if known, and method of computation thereof, and containing a person (including any governmental entity) who is not a party reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises. The obligations of an Indemnifying Party under this ARTICLE IX with respect to Damages arising from any of the Transaction Documents claims of any claim or of third party which are subject to the commencement indemnification provided for in this ARTICLE IX (collectively, "Third-Party Claims") will be governed by any such Person and contingent upon the following additional terms and conditions: if an Indemnified Party receives, after the Closing Date, initial notice of any action (a “Third-Party Claim”) with respect to which an , the Indemnified Party will give the Indemnifying Party may be obligated to provide indemnification pursuant to this Agreement, each such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after becoming aware of such Third-Party ClaimClaim within such time frame as necessary to allow for a timely response and in any event within 30 calendar days of the receipt by the Indemnified Party of such notice; providedPROVIDED, howeverHOWEVER, that the failure of any Indemnitee to give provide such timely notice as required by this Section 5.5 shall will not relieve each release the Indemnifying Party from any of its obligations under this Article V, ARTICLE IX except to the extent that each such the Indemnifying Party is prejudiced by such failure to give noticefailure. Such notice shall describe the Third-Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
(b) An The Indemnifying Party may elect to defend or to seek to settle or compromise, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel reasonably acceptable to each Indemnitee, any Third-Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is will be entitled to indemnification hereunder in respect of such Third-Party Claim. Within 30 days of assume and control the receipt of notice from an Indemnitee in accordance with Section 5.5(a) (or sooner, if the nature defense of such Third-Party Claim so requires), the Indemnifying Party shall notify each Indemnitee at its expense and through counsel of its election whether to assume responsibility for such Third-Party Claim (provided that choice if the Indemnifying Party does not so notify each Indemnitee it gives notice of its election intention to do so to the Indemnified Party within 30 45 calendar days after of the receipt of such notice from each Indemniteethe Indemnified Party; PROVIDED, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim), and each Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each Indemnitee of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, howeverHOWEVER, that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees that would make it inappropriate in the reasonable judgment of the Indemnified Party (upon and in conformity with advice of counsel) for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party such Indemnitees shall have the right will be entitled to employ separate counsel and in that event the reasonable fees and expenses of such separate retain one counsel (but not more than plus one separate counsel local counsel, if necessary), reasonably satisfactory acceptable to the Indemnifying Party) shall be paid by each such , at the expense of the Indemnifying Party. If any Indemnifying , provided that the Indemnified Party elects not to assume responsibility for a and such counsel will contest such Third-Party Claim (which election may be made only Claims in good faith. In the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3, as the case may be), each Indemnifying Party exercises the right to undertake any such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle defense against any such Third-Party Claim without prior written notice as provided above, the Indemnified Party will cooperate with the Indemnifying Party in such defense and make available to each such the Indemnifying Party, which shall have at the option within fifteen days following the receipt of such notice (i) to reject the settlement Indemnifying Party's expense, all witnesses, pertinent records, materials and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation information in the defense of Indemnified Party's possession or under the claimIndemnified Party's control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Indemnifying Party makes no response to such written notice from an Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall the Indemnifying Party will cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party's expense, all such witnesses, records, materials and information in the Indemnifying Party's possession or under the Indemnifying Party's control relating thereto as is reasonably required by the Indemnified Party. The Indemnifying Party any personnel and any bookswill not, records without the written consent of the Indemnified Party (which will not be unreasonably withheld or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defensedelayed), within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates consent to the entry of any judgment which does not include as an unconditional term thereof the giving delivery by such the claimant or plaintiff to each Indemnitee Indemnified Party of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such No Third-Party Claim free of any participation which is being defended in good faith by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-or which is being defended by the Indemnified Party Claim shall as provided above in this SECTION 9.5 will be equal to (i) settled by the costs and expenses of each such Indemnitee prior to Indemnified Party without the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee consent of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does (which will not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period unreasonably withheld or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Partiesdelayed).
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Newell Rubbermaid Inc)
Procedure for Indemnification. (a) If an Indemnitee shall receive notice Any Person or otherwise learn of the assertion by entity entitled to assert a person (including any governmental entity) who is not a party to claim for indemnification under this Agreement or (the "Indemnitee") shall give prompt written notice to any of the Transaction Documents indemnifying party (the "Indemnitor") of any claim or of event known to it which does or may give rise to a claim for indemnification hereunder by the commencement by any such Person of any action (a “Third-Party Claim”) with respect to which an Indemnifying Party may be obligated to provide indemnification pursuant to this Agreement, each such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after becoming aware of such Third-Party Claimagainst the Indemnitor; provided, however, provided that the failure of any Indemnitee to give notice as required by provided in this Section 5.5 7.3 shall not relieve each Indemnifying Party the Indemnitor of its obligations under this Article VSection 7, except to the extent that each such Indemnifying Party is prejudiced by such failure has materially and adversely affected the rights of the Indemnitor. In the case of any claim for indemnification hereunder arising out of a claim, action, suit or pro- ceeding brought by any Person who is not a party to this Agreement (a "Third Party Claim"), the Indemnitee shall also give notice. Such notice shall describe the Third-Indemnitor copies of any written claims, process or legal pleadings with respect to such Third Party Claim in reasonable detail, and shall indicate promptly after such documents are received by the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
(b) An Indemnifying Party Indemnitor may elect to defend compromise or to seek to settle or compromisedefend, at such Indemnifying Party’s Indemnitor's own expense and by such Indemnifying Party’s Indemnitor's own counsel reasonably acceptable to each Indemniteecounsel, any Third-Third Party Claim. If an Indemnitor elects to compromise or defend a Third Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect of such Third-Party Claim. Within shall, within 30 days of the date of its receipt of the notice from an Indemnitee in accordance with provided pursuant to Section 5.5(a7.3(a) hereof (or sooner, if the nature of such Third-Third Party Claim so requires), notify the Indemnifying Party shall notify each related Indemnitee of its election whether intent to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim)do so, and each such Indemnitee shall reasonably cooperate in the compromise of, or defense or settlement or compromise of against, such Third-Third Party Claim. Such Indemnitor shall pay such Indemnitee's actual out-of-pocket expenses incurred in connection with such cooperation. After notice from an Indemnifying Party Indemnitor to each an Indemnitee of its election to assume responsibility for the defense of a Third-Third Party Claim, such Indemnifying Party Indemnitor shall not be liable to each such Indemnitee under this Article V Section 7 for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; providedprovided that such Indemnitee shall have the right to employ one counsel of its choice in each applicable jurisdiction (if more than one jurisdiction is involved) to represent such Indemnitee if, however, that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ Indemnitee's reasonable judgment there exists judgment, a conflict of interest between such Indemnitees Indemnitee and the Indemnifying Party such Indemnitees shall have the right to employ separate counsel Indemnitor exists in respect of such claim, and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying PartyIndemnitor. If any Indemnifying Party an Indemnitor elects not to assume responsibility for compromise or defend against a Third-Third Party Claim (which Claim, or fails to notify an Indemnitee of its election may be made only as provided in the event of a good faith dispute that a claim was inappropriately tendered under this Section 5.2 or 5.37.3, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to pay, compromise or settle defend such Third-Third Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt on behalf of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement account and continue to refrain from participation in the defense risk of the claimIndemnitor. No Indemnitor shall consent to entry of any judgment or enter into any settlement without the written consent of each related Indemnitee (which consent shall not be unreasonably withheld), in which event each unless such Indemnifying Party shall have no further right to contest the amount judgment or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records provides solely for money damages or other documents within its control or money payments for which it otherwise has the ability such Indemnitee is entitled to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates indemnification hereunder and includes as an unconditional term thereof the giving by such the claimant or plaintiff to each such Indemnitee of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Third Party Claim.
(ec) Any claim on account of an Indemnifiable Loss which does not result from If there is a Third-reasonable likelihood that a Third Party Claim shall be asserted by written notice given by may adversely affect an Indemnitee, other than as a result of money damages or other money payments for which such Indemnitee is entitled to each applicable Indemnifying Party. Each indemnification hereunder, such Indemnifying Party shall Indemnitee will have a period of 30 days the right, after consultation with the receipt of such notice within which to notify each applicable Indemnitee Indemnitor and at the cost and expense of the Indemnifying Party’s response Indemnitor, to the claim. If each defend such Indemnifying Third Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the PartiesClaim.
(fd) In addition to any adjustments required pursuant to Section 5.4, if If the amount of any Indemnifiable Loss Losses shall, at any time subsequent to the payment required by pursuant to this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each the Indemnitee to each Indemnifying Partythe related Indemnitor.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 1 contract
Sources: Asset Purchase Agreement (CVF Corp)
Procedure for Indemnification. (ai) If Any claim for indemnification under this Section 8.1 (an Indemnitee "Indemnification Claim") shall receive be made by the party claiming indemnification (the "Indemnitee") by delivery of a written notice to the party against whom indemnification is claimed (the "Indemnitor") requesting indemnification and specifying the basis on which indemnification is sought and the amount of asserted Losses and, in the case of a Third Party Claim (as defined below), containing (by attachment or otherwise learn of the assertion by a person (including any governmental entityotherwise) who is not a party to this Agreement or to any of the Transaction Documents of any claim or of the commencement by any such Person of any action (a “Third-Party Claim”) with respect to which an Indemnifying Party may be obligated to provide indemnification pursuant to this Agreement, each other information as such Indemnitee shall give each have concerning such Indemnifying Party written notice thereof promptly after becoming aware of such Third-Party Claim; provided, however, that the failure of any Indemnitee to give notice as required by this Section 5.5 shall not relieve each Indemnifying Party of its obligations under this Article V, except to the extent that each such Indemnifying Party is prejudiced by such failure to give notice. Such notice shall describe the Third-Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
(b) An Indemnifying Party may elect to defend or to seek to settle or compromise, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel reasonably acceptable to each Indemnitee, any Third-Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect of such Third-Party Claim. Within 30 days of the receipt of notice from an Indemnitee in accordance with Section 5.5(a) (or sooner, if the nature of such Third-Party Claim so requires), the Indemnifying Party shall notify each Indemnitee of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim), and each Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each Indemnitee of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees and the Indemnifying Party such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Third Party Claim.
(eii) Any claim on account If the Indemnification Claim involves a Third Party Claim the procedures set forth in Section 8.1(d) shall be observed by the Indemnitee and the Indemnitor.
(iii) If the Indemnification Claim involves a matter other than a Third Party Claim, the Indemnitor shall have thirty (30) days to object to such Indemnification Claim by delivery of an Indemnifiable Loss which does not result from a Third-Party written notice of such objection to such Indemnitee specifying in reasonable detail the basis for such objection. Failure to timely so object shall constitute a final and binding acceptance of the Indemnification Claim by the Indemnitor, and the Indemnification Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claimpaid in accordance with subsection (iv) hereof. If each such Indemnifying Party does an objection is timely interposed by the Indemnitor and the dispute is not so notify each resolved by such Indemnitee during and the Indemnitor within 15 days from the date the Indemnitee receives such 30-day periodobjection, such Indemnifying Party dispute shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim resolved by arbitration as provided in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the PartiesSection 8.11.
(fiv) In addition to any adjustments required pursuant to Section 5.4, if Upon determination of the amount of an Indemnification Claim, whether by agreement between the Indemnitor and the Indemnitee or by an arbitration award or by any Indemnifiable Loss shallother final adjudication, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, Indemnitor shall pay the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying PartyIndemnification Claim within ten (10) days of the date such amount is determined.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 1 contract
Sources: Asset Purchase Agreement (Gorges Quik to Fix Foods Inc)
Procedure for Indemnification. (a) If an Indemnitee An Indemnified Party shall receive give written notice or otherwise learn (the "Claim Notice") of any Claim for indemnification under this Article VIII to the Shareholder Representative, on behalf of the indemnifying party, reasonably promptly after the assertion by a person (including any governmental entity) who is not a party to this Agreement or to any of the Transaction Documents against an Indemnified Party of any claim or of the commencement by any such Person of any action a third party (a “Third-"Third Party Claim”") with or, if such Claim is not in respect of a Third Party Claim, reasonably promptly after the discovery of facts upon which the Indemnified Party intends to which an Indemnifying Party may be obligated to provide base a Claim for indemnification pursuant to this Agreement, each such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after becoming aware of such Third-Party ClaimArticle VIII; provided, however, that the failure of any Indemnitee or delay to give notice as required by this Section 5.5 so notify the Shareholder Representative shall not relieve each Indemnifying the indemnifying party of any obligation or liability that the indemnifying party may have to the Indemnified Party of its obligations under this Article V, except to the extent that each the indemnifying party demonstrates that his, her or its ability to defend or resolve such Indemnifying Party Claim is prejudiced by adversely affected thereby. Any such failure to give notice. Such notice Claim Notice shall describe the Third-Party Claim items set forth in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such IndemniteeEscrow Agreement.
(b) An Indemnifying The procedures to be followed by the Shareholder Representative with respect to contesting whether a Claim is an indemnifiable Claim shall be as set forth in the Escrow Agreement.
(i) Subject to the rights of or duties to any insurer or other third party having potential liability therefor, the Shareholder Representative, on behalf of the indemnifying party, shall have the right, upon written notice given by the Shareholder Representative to the Indemnified Party may within 30 days after receipt by the Shareholder Representative of the notice from the Indemnified Party of any Third Party Claim, to assume the defense or handling of such, Third Party Claim, at the indemnifying party's 68 sole expense, in which case the provisions of Section 8.4(c)(ii) hereof shall govern; provided, however, that, notwithstanding the foregoing, Amaz▇▇.▇▇▇ ▇▇▇ elect to defend assume the defense and handle any such Third Party Claim if it determines in good faith that the resolution of such Third Party Claim could result in an adverse impact on the business, operations, assets, liabilities (absolute, accrued, contingent or to seek to settle otherwise), condition (financial or compromiseotherwise) or prospects of Amaz▇▇.▇▇▇, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own ▇▇ which case the provisions of Section 8.4(d)(ii) hereof shall govern.
(ii) The Shareholder Representative, on behalf of the indemnifying party, shall select counsel reasonably acceptable to each Indemnitee, any Third-the Indemnified Party in connection with conducting the defense or handling of such Third Party Claim, provided that and the Indemnifying Shareholder Representative shall defend or handle the same in consultation with the Indemnified Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect and shall keep the Indemnified Party timely apprised of the status of such Third-Third Party Claim. Within 30 days The Shareholder Representative shall not, without the prior written consent of the receipt Indemnified Party, agree to a settlement of notice from any Third Party Claim, unless (A) the settlement provides an Indemnitee unconditional release and discharge of the Indemnified Party and the Indemnified Party is reasonably satisfied with such discharge and release and (B) the Indemnified Party shall not have reasonably objected to any such settlement on the ground that the circumstances surrounding the settlement could result in accordance an adverse impact on the business, operations, assets, liabilities (absolute, accrued, contingent or otherwise), condition (financial or otherwise) or prospects of the Indemnified Party. The Indemnified Party shall cooperate with Section 5.5(athe Shareholder Representative and shall be entitled to participate in the defense or handling of such Third Party Claim with its own counsel and at its own expense.
(d) (or sooner, if i) If (A) the nature of such Third-Party Claim so requires), the Indemnifying Party shall notify each Indemnitee of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party Shareholder Representative does not so notify each Indemnitee of its election give written notice to the Indemnified Party pursuant to Section 8.4(c)(i) within 30 days after receipt of such the notice from each Indemnitee, the Indemnifying Indemnified Party shall be deemed to have elected not of any Third Party Claim of the Shareholder Representative's election to assume responsibility for such Third-Party Claim), and each Indemnitee shall cooperate in the defense or settlement or compromise handling of such Third-Party Claim. After notice from an Indemnifying Party to each Indemnitee of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees and the Indemnifying Party such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any Indemnifying Party elects not to assume responsibility for a Third-Third Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) Amaz▇▇.▇▇▇ ▇▇▇cts to assume the actual out-of-pocket amount each defense and the handling of such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Third Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise8.4(c)(i), the amount provisions of such reduction, less any expenses incurred in connection therewith, Section 8.4(d)(ii) hereof shall promptly be repaid by each Indemnitee to each Indemnifying Partygovern.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 1 contract
Sources: Merger Agreement (Amazon Com Inc)
Procedure for Indemnification. (a) If Except as provided in ----------------------------- clause (d) of this Section 9.03, in the event that any party hereto or other Purchaser Indemnified Party or Seller Indemnified Party reasonably believes that such party has a claim for Damages in respect of which indemnity may be sought by such party pursuant this Agreement (each, an "Indemnification Matter"), the party indemnified hereunder (the "Indemnitee") shall notify the party(s) providing indemnification (collectively, the "Indemnitor") by sending written notice to the Indemnitor (an "Indemnity Notice"). In the case of third party claims, which, if successful, could result in an indemnity payment hereunder, an Indemnity Notice shall be given within 30 days after the discovery by the Indemnitee shall receive notice or otherwise learn of the filing or assertion by a person (including any governmental entity) who is not a party to this Agreement or to any of the Transaction Documents of any claim or of against the commencement by any such Person of any action (a “Third-Party Claim”) with respect to which an Indemnifying Party may be obligated to provide indemnification pursuant to this Agreement, each such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after becoming aware stating the nature and basis of such Third-Party Claimclaim; provided, however, that the any delay or failure to notify any Indemnitor of any Indemnitee to give notice as required by this Section 5.5 claim shall not relieve each Indemnifying Party of its obligations under this Article V, it from any liability except to the extent that each the Indemnitor demonstrates that the defense of such Indemnifying Party action is prejudiced by such delay or failure to give noticenotify. Such notice Any Indemnity Notice (i) shall describe state (with reasonable specificity) the Third-Party Claim in reasonable detailbasis on which indemnification is being asserted, and (ii) shall indicate set forth the amount of Damages for which indemnification is being asserted and (estimated if necessaryiii) in the case of third party claims, shall be accompanied by copies of all relevant pleadings, demands and other papers served on the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
(b) An Indemnifying Party may elect The indemnitor shall have the right, exercisable by written notice to defend or to seek to settle or compromise, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel reasonably acceptable to each Indemnitee, any Third-Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect of such Third-Party Claim. Within within 30 days of the receipt of notice from an the Indemnitee of the commencement or assertion of any third party claim in respect of which indemnity may be sought hereunder (the "Indemnity Notice Claim"), to assume and conduct the defenses of such third party claim with counsel selected by the Indemnitor and reasonably acceptable to the Indemnitee; provided that (i) the defense of such third party claim by the Indemnitor will not, in the judgment for the Indemnitee, have a material adverse effect of the Indemnitee; and (ii) the Indemnitor has sufficient financial resources (including amounts held in escrow pursuant to the Escrow Agreement), in the reasonable judgment of the Indemnitee, to satisfy the amount of any adverse monetary judgement that is reasonably likely to result: and (iii) the third parry claim solely seeks (and continues to seek) monetary damages: and (iv) the Indemnitor expressly agrees :n writing that as between the Indemnitor and the Indemnitee, the Indemnitor shall be solely obligated to satisfy and discharge the third parry claim (the conditions set forth in clauses i through iv) collectively referred to as the "Litigation Conditions"). If the Indemnitor does nor assume the defense of such third parry claim in accordance with this Section 5.5(a) (or sooner, if the nature of such Third-Party Claim so requires)9.03, the Indemnifying Party shall notify each Indemnitee of its election whether may continue to assume responsibility for such Third-Party Claim (provided that if defend the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each Indemnitee, third party claim. If the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim), and each Indemnitee shall cooperate in Indemnitor has assumed the defense or settlement or compromise of such Third-Party Claimof' a third party claim as provided in this Section 9.03. After notice from an Indemnifying Party to each Indemnitee of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall the Indemnitor will not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such the Indemnitee in connection with the defense thereof; thereof provided, however, that if if(i) the defendants in any Litigation Conditions cease to be met, or (ii) the Indemnitor fails to take reasonable steps necessary to defend diligently such claim include both third party claim, the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees Indemnitee may assume its own defense, and the Indemnifying Party such Indemnitees shall have Indemnitor will be liable for all reasonable costs or expenses paid or incurred in connection therewith. The Indemnitor or the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3Indemnitee, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following right to participate in (but to control) at its Own expense, the receipt defense of any third party claim which the other is defending as provided in this Agreement. The Indemnitor, if it shall have assumed the defense of any third party claim as provided in this Agreement, shall not, without the prior written consent of the Indemnitee, consent to a settlement of, or the entry of any judgment arising from, any such notice third party claim (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall does not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates include as an a unconditional term thereof the giving by such the claimant or the plaintiff to each the Indemnitee of a written complete release from all liability in respect of such Third-Party Claimthird party claim, and or (ii) such settlement which grants any injunctive or equitable relief, or (iii) which may reasonably be expected to have a material adverse effect on the affected business of the Indemnitee. The Indemnitee shall have the right to settle any third party claim, the defense of which has not been assumed by the Indemnitor, with the written consent of the Indemnitor, which consent shall not be unreasonably withheld or delayed. Within 30 days after the Determination Date with respect to a third parry claim, the Indemnitor shall pay the Indemnitee the amount of Damages sustained or incurred by the Indemnitee, Interest will accrue on unpaid Damages at the prime rate plus two percent (2%) per annum.
(c) In the event that liability hereunder does not provide involve a third party claim, the Indemnitor shall within 30 days after the date of receipt of an Indemnity Notice respond in writing to the Indemnitee (the "Indemnity Response") and set forth with reasonable specificity those items in the Indemnity Notice to which the Indemnitor does not agree as well as the summary basis upon which such disagreement is founded. Within 30 days following the receipt of the Indemnity Response by the Indemnitee, representatives of the Indemnitor and the Indemnitee shall meet to attempt to resolve through good faith negotiations the applicable Indemnification Matters. The parties shall negotiate in good faith for up to 60 days in an attempt to reach a settlement of any non-monetary relief by any Indemnitee unless each such Indemnitee consents theretodisputed matter. In the event that such good faith negotiations are unsuccessful or in the event of any Indemnitee other dispute under this Section IX, the parties shall proceed in accordance with Section 11.07 of this Agreement.
(i) If a claim shall be made by any taxing authority, which, if successful, might result in an indemnity payment to any Purchaser Indemnified Party, the Purchaser shall promptly notify the Indemnifying Party Parent in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation (a "Tax Notice") of such Indemnifying Party claim a "Tax Claim"). If a Tax Notice is not given to the Parent within a reasonable period of time, or unreasonable detail to apprise the Parent of the nature of the Tax Claim, in each such Indemnitee case taking into account the facts and circumstances with respect to such Third-Party Claim Tax Claim, neither the Parent nor the Seller shall be equal liable to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying any Purchaser Indemnified Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus that the Parent's or the Seller's position is prejudiced as a result thereof.
(ii) With respect to any Tax Claim, the lesser Parent and the Seller shall have the right to control and conduct all proceedings and negotiations in connection with such Tax Claim (including, without limitation, selection of counsel) and, without limiting the foregoing, may in the Parent's sole discretion pursue or forego any and all administrative appeals, proceedings, hearings and conferences with any taxing authority with respect thereto, and may, in the Parent's sole discretion, either pay the Tax claimed and ▇▇▇ for a refund where applicable law permits such refund suits or contest the Tax Claim ~n any permissible manner. The Parent shall, within 30 days of receipt or' a Tax Notice with respect to a Tax Claim (Athe "Tax Notice Period"), notify the Purchaser in writing of its intention to control and conduct the proceedings and negotiations in connection with such Tax Claim. In the event that the Parent does notify the Purchaser of its intention to control and conduct the proceedings and negotiations in connection with any Tax Claim as provided above, the Purchaser shall have the right to participate fully in such proceedings and negotiations (including, without limitation, with counsel of its choice), at its sole expense, and the Parent and the Seller shall cooperate fully with the Purchaser in connection with such participation. If the Parent does not deliver to the Purchaser within the Tax Notice Period written notice that it will control and conduct the proceedings and negotiations in connection with a Tax Claim, the Purchaser may control, or cause the applicable Group Member to control, and conduct such proceedings and negotiations in such manner as it may deem appropriate. In the event that the Parent or the Seller do not exercise their right to control and conduct the proceedings and negotiations in connection with any Tax Claim as provided above, the Parent and the Seller shall have the right to participate fully in such proceedings and negotiations (including, without limitation, with counsel of their choice), at their sole expense, and the Purchaser shall, and shall cause each Group Member to, cooperate fully with Parent and the Seller and their accountants and other representatives in connection with such participation, and in all cases the Purchaser shall keep the Parent fully informed as to all matters concerning such Tax Claim and shall promptly notify the Parent in writing of any and all significant developments relating thereto. Without limiting Sections 8.04 and 8.06, the Purchaser and each of its Affiliates shall (and the Purchaser shall cause the Group Members to) cooperate fully with the Parent and the Seller in contesting any Tax Claim, which cooperation shall include, without limitation, the retention and (upon the Parent's request) the amount provision to the Parent of records and information which are relevant to such Tax Claim, and making officers and employees available on a timely and mutually convenient basis to provide additional information or explanation of any offer of settlement material provided hereunder or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent testify at proceedings relating to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Tax Claim.
(eiii) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response Notwithstanding anything to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day periodcontrary contained herein, such Indemnifying Party in no event shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement the Purchaser or any other agreement Group Member settle or arrangement between otherwise compromise any Tax Claim without the PartiesParent's prior written consent which may not be withheld for any reason.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 1 contract
Procedure for Indemnification. (ai) If In order for an Indemnitee shall receive notice or otherwise learn indemnified party under this Article 8 (an "Indemnified Party") to be entitled to any indemnification provided for under this Agreement, such Indemnified Party shall, promptly following the discovery of the assertion by a person (including any governmental entity) who is not a party to this Agreement or matters giving rise to any Loss, notify the indemnifying party under this Article 8 (the "Indemnifying Party") in writing of its claim for indemnification for such Loss, specifying in reasonable detail the nature of such Loss and the amount of the Transaction Documents liability estimated to accrue therefrom (the "Indemnification Claim Notice"); provided, however, that failure to give such prompt notification shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party will have been actually prejudiced as a result of any claim or such failure. Thereafter, the Indemnified Party shall deliver to the Indemnifying Party, within five (5) Business Days after the Indemnified Party's receipt of such request, all information and documentation reasonably requested by the commencement by any such Person of any action (a “Third-Indemnifying Party Claim”) with respect to which an such Loss.
(ii) If the indemnification sought pursuant hereto involves a claim made by a Third Party against the Indemnified Party (a "Third Party Claim"), the Indemnifying Party may shall be obligated entitled to provide indemnification pursuant to this Agreement, each such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after becoming aware participate in the defense of such ThirdThird Party Claim and, if it so chooses within forty-five (45) days after its receipt of an Indemnification Claim Notice ("Notice Period"), to assume the defense of such Third Party ClaimClaim with counsel selected by the Indemnifying Party; provided, however, that the failure Indemnifying Party shall not be entitled to assume the defense of any Indemnitee to give notice as required by this Section 5.5 shall not relieve each Indemnifying Third Party of its obligations under this Article V, except Claim to the extent such claims involve or seek injunctive or other relief that each does not involve solely monetary obligations or involve a criminal matter, and provided, further that the Indemnified Party shall be permitted to take any actions necessary in the defense of such Indemnifying Party is prejudiced by such failure to give notice. Such notice shall describe the Third-Third Party Claim in reasonable detailduring such Notice Period, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
(b) An Indemnifying Party may elect to defend or to seek to settle or compromise, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel reasonably acceptable to each Indemnitee, any Third-Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect of such Third-Party Claim. Within 30 days of the receipt of notice from an Indemnitee in accordance with Section 5.5(a) (or sooner, if the nature of such Third-Party Claim so requires), the Indemnifying Party shall notify each Indemnitee of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does has not so notify each Indemnitee yet assumed the defense of its election within 30 days after receipt the Third Party Claim, and when practicable, the Indemnified Party shall provide prior notice of such notice from each Indemnitee, action to the Indemnifying Party. Should the Indemnifying Party shall be deemed to have elected not so elect to assume responsibility for such Third-Party Claim), and each Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each Indemnitee of its election to assume responsibility for a Third-Third Party Claim, such the Indemnifying Party shall not be liable to each such Indemnitee under this Article V the Indemnified Party for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee the Indemnified Party in connection with the defense thereof. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for the reasonable fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof. If the Indemnifying Party chooses to defend or prosecute a Third Party Claim, all of the Parties hereto shall cooperate in the defense or prosecution thereof. Such cooperation shall include (i) the retention and (upon the Indemnifying Party's request) the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim and reasonably available to the Indemnified Party, and (ii) making relevant employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder; provided, that the Indemnifying Party shall reimburse the Indemnified Party for all its reasonable out-of-pocket expenses in connection therewith.
(iii) If the Indemnifying Party chooses to defend or prosecute any Third Party Claim, to the extent that it involves any agreement, performance or observance by the Indemnified Party, the Indemnifying Party shall not agree to such agreement, performance of observance without the Indemnified Party's prior written consent (which shall not be unreasonably withheld, conditioned or delayed). Further, with respect to all Losses in connection with Third Party Claims where the Indemnifying Party has assumed the defense or prosecution of the Third Party Claim in accordance with Paragraph above, the Indemnifying Party shall not be liable for any settlement of other disposition of such Losses by an Indemnified Party that is reached without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. Whether or not the Indemnifying Party will have assumed the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which shall not be unreasonably withheld, conditioned or delayed). If the Indemnifying Party chooses not to defend or prosecute any Third Party Claim, no Indemnified Party shall admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed).
(iv) Without limiting Paragraph 8(d)(iii)), any Indemnified Party shall be entitled to participate in, but not control, the defense of such Third Party Claim and to employ counsel of its choice for such purpose; provided, however, that if such employment shall be at the defendants in any such claim include both Indemnified Party's own expense unless (i) the employment thereof has been specifically authorized by the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees and the Indemnifying Party such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claimwriting, or (ii) the Indemnifying Party has failed to reject the settlement and continue to refrain from participation in assume the defense of the claim, and employ counsel in accordance with Paragraph 8(d)(iii) (in which event each such Indemnifying case the Indemnified Party shall have no further control the defense). The reasonable and verifiable costs and expenses incurred pursuant to Paragraph 8(d)(iii), including fees and disbursements of counsel, incurred by the Indemnified Party in connection with any Third Party Claim shall be reimbursed promptly upon receipt of appropriate documentation relating thereto by the Indemnifying Party, without prejudice to the Indemnifying Party's right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Indemnified Party’s 's right to contest each Indemnitee’s right indemnification and subject to indemnity, or (iv) to approve and agree to pay the settlement. In refund in the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the Indemnifying Party shall is ultimately held not to be deemed obligated to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has indemnify the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Indemnified Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 1 contract
Sources: Intellectual Property Sale and Assignment Agreement (Findex Com Inc)
Procedure for Indemnification. (a) If Except as may be set forth in a Related Agreement, if an Indemnitee Indemnified Party shall receive notice or otherwise learn of the assertion by a person Person (including including, without limitation, any governmental entity) who is not a party to this Agreement or to any of the Transaction Documents Related Agreements of any claim or of the commencement by any such Person or its Affiliate of any action (a “Third-Party Claim”) Action with respect to which an Indemnifying Party may be obligated to provide indemnification pursuant to this AgreementAgreement (a "Third-Party Claim"), each such Indemnitee Indemnified Party shall give each such Indemnifying Party written notice thereof promptly after becoming aware of such Third-Party Claim; provided, however, that the failure of any Indemnitee Indemnified Party to give notice as required by this Section 5.5 5.04 shall not relieve each the Indemnifying Party of its obligations under this Article V, except to the extent that each such Indemnifying Party is prejudiced by such failure to give notice. Such notice shall describe the Third-Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such IndemniteeIndemnified Party.
(b) An Indemnifying Party may elect to defend or to seek to settle or compromise, at such Indemnifying Party’s 's own expense and by such Indemnifying Party’s 's own counsel reasonably acceptable to each Indemniteecounsel, any Third-Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee the Indemnified Party is entitled to indemnification hereunder in respect of such Third-Party Claim. Within 30 days of the receipt of notice from an Indemnitee Indemnified Party in accordance with Section 5.5(a5.04(a) (or sooner, if the nature of such Third-Party Claim so requires), the Indemnifying Party shall notify each Indemnitee the Indemnified Party of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee the Indemnified Party of its election within 30 days after receipt of such notice from each Indemniteethe Indemnified Party, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim), and each Indemnitee such Indemnified Party shall cooperate in the defense or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each Indemnitee an Indemnified Party of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee Indemnified Party under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee Indemnified Party in connection with the defense thereof; provided, however, that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees Indemnified Parties and in such Indemnitees’ Indemnified Parties' reasonable judgment there exists a conflict of interest between such Indemnitees Indemnified Parties and the such Indemnifying Party exists in respect of such Indemnitees claim, such Indemnified Parties shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any an Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 5.01 or 5.35.02, as the case may be), each ) such Indemnitee Indemnified Party may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim Claim. Notwithstanding the foregoing, an Indemnified Party may not settle or compromise any claim without prior written notice to each such the Indemnifying Party, which shall have the option within fifteen ten days following the receipt of such notice (i) to reject disapprove the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee the Indemnified Party for prior expenditures in connection with the claim, or (ii) to reject disapprove the settlement and continue to refrain from participation in the defense of the claim, in which event each such the Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee the Indemnified Party elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such the Indemnifying Party’s 's right to contest each Indemnitee’s the Indemnified Party's right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such the Indemnifying Party makes no response to such written notice from an Indemniteethe Indemnity, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee the Indemnified Party shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying the Indemnified Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.applicable
Appears in 1 contract
Sources: Distribution Agreement (Optimum Health Services Inc)
Procedure for Indemnification. The procedure for indemnification shall be as follows:
(a) If an Indemnitee The Party seeking indemnification under this Article 9 (the “Claimant”) shall receive give notice or otherwise learn of to the assertion by a person Party from whom indemnification is sought (including any governmental entitythe “Indemnitor”) who is not a party to this Agreement or to any of the Transaction Documents of any claim or liability that might result in an indemnified Loss (an “Indemnified Claim”), specifying in reasonable detail (i) the factual basis for and circumstances surrounding the Indemnified Claim; and (ii) the amount of the commencement potential Loss pursuant to the Indemnified Claim if then known. If the Indemnified Claim relates to a Proceeding filed by any such Person a third party against Claimant, notice shall be given by Claimant as soon as practical, but in all events within fifteen (15) business days after Claimant learns of any action the Proceeding or written notice of the Proceeding is given to Claimant. In all other circumstances, notice shall be given by Claimant as soon as practical, but in all events within twenty (a “Third-Party Claim”20) with respect business days after Claimant becomes aware of the facts giving rise to which an Indemnifying Party may the potential Loss; provided, however, that should the Claimant fail to notify the Indemnitor in the time required above, the Indemnitor shall only be obligated to provide indemnification relieved of its obligations pursuant to this AgreementArticle 9 to the extent the Indemnitor is materially prejudiced by such delay or failure to timely give notice of an Indemnified Claim or potential Loss.
(b) The Claimant shall make available to Indemnitor and/or its authorized representatives the information relied upon by the Claimant to substantiate the Indemnified Claim or Loss and shall make available any information or documentation in Claimant’s possession, each custody or control that is or may be helpful in defending or responding to the Indemnified Claim or Loss.
(c) The Indemnitor shall have thirty (30) days after receipt of the indemnification notice referred to in sub-section (a) to notify the Claimant in writing that it elects to conduct and control the defense of any such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after becoming aware of such Third-Party Indemnified Claim; provided, however, that such thirty (30) day period shall be reduced to such shorter period of time set forth in the failure of any Indemnitee to give applicable indemnification notice as required by this Section 5.5 shall not relieve each Indemnifying Party of its obligations under this Article V, except to if the extent that each such Indemnifying Party Indemnified Claim or Loss is prejudiced by such failure to give notice. Such notice shall describe the Thirdbased upon a third-Party Claim party claim requiring a response in reasonable detail, and shall indicate the amount fewer than thirty (estimated if necessary30) of the Indemnifiable Loss that has been or may be sustained by each such Indemniteedays.
(bd) An Indemnifying Party may elect If the Indemnitor does not advise the Claimant of its intent to defend conduct and control the defense of the Indemnified Claim or Proceeding within the time period specified above, the Claimant shall have the right to seek to settle defend, contest, settle, or compromise, at compromise such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel reasonably acceptable to each Indemnitee, any Third-Party Claim, provided that Indemnified Claim or Proceeding. If the Indemnifying Party must confirm in writing Indemnitor properly advises the Claimant that it agrees that each Indemnitee is entitled will conduct and control the Indemnification Claim or Proceeding, the Indemnitor shall have the right to indemnification hereunder in respect undertake, conduct, defend, and control, through counsel of such Third-Party Claim. Within 30 days its own choosing and at its sole expense, the conduct, defense, and settlement of the receipt of notice from an Indemnitee in accordance with Section 5.5(a) (Indemnified Claim or sooner, if the nature of such Third-Party Claim so requires), the Indemnifying Party shall notify each Indemnitee of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim)Proceeding, and each Indemnitee the Claimant shall cooperate in with the defense or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each Indemnitee of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee Indemnitor in connection with the defense thereoftherewith; provided, however, that if that:
(i) the defendants in Indemnitor shall not consent to the imposition of any such claim include both injunction against the Indemnifying Party and one or more Indemnitees and Claimant without the prior written consent of the Claimant, which consent shall not be unreasonably withheld; (ii) the Indemnitor shall permit the Claimant to participate in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees and conduct or settlement through counsel chosen by the Indemnifying Party such Indemnitees shall have Claimant, but the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid borne by each the Claimant; (iii) upon a final determination of Proceeding, the Indemnitor shall promptly reimburse the Claimant for the full amount of any indemnified Loss or indemnified portion of any Loss resulting from the Indemnified Claim or Proceeding and all reasonable expenses related to such Indemnifying Party. If any Indemnifying Party elects not to assume responsibility indemnified Loss incurred by the Claimant, except (A) fees and expenses of counsel for a Third-Party Claim (which election may be made only the Claimant in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 Indemnitor has conducted or 5.3, as controlled the case may be), each such Indemnitee may defend or Proceeding and (subject to the following sentenceB) seek to compromise or settle such Third-Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement any Loss not indemnifiable by Indemnitor; and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay no Indemnitor may, without the settlement. In prior written consent of the event such Indemnifying Party makes no response to such written notice from an IndemniteeClaimant, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend settle or to seek to compromise any Third-Party Claimcompromise, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 consent to the contraryentry of any judgment in connection with, an Indemnifying Party shall not settle or compromise any Third-Party Claim Proceeding with respect to the claim described in the indemnification notice unless (iA) such settlement or compromise contemplates as an unconditional term thereof involves only the giving by such claimant or plaintiff to each Indemnitee payment of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and money; (B) there is no finding or admission of liability, any violation of any Law or any violation of the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result rights of any Person by the Claimant; and (C) the Indemnitor obtains an unconditional release of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Claimant from all Indemnified Claims or potential Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee arising out of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand described in the place of such Indemnitee as to indemnification notice and any events Indemnified Claim or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claimProceeding related thereto.
Appears in 1 contract
Procedure for Indemnification. (a) If an any Indemnitee shall receive receives notice or otherwise learn of the assertion by a person (including any governmental entity) who is not a party to this Agreement or to any of the Transaction Documents of any claim or of the commencement by any such Person of any action (a “Third-Party Claim”) party Claim with respect to which an Indemnifying Party may be is obligated under this Separation Agreement to provide indemnification pursuant to this Agreementindemnification, each such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after becoming aware of such Third-Party party Claim; provided, however, that the failure of any Indemnitee to give notice as required by provided in this Section 5.5 3.03 shall not relieve each any Indemnifying Party of its obligations under this Article VIII, except to the extent that each such Indemnifying Party is actually prejudiced by such failure to give notice. Such notice shall describe the such Third-Party party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
(b) An Indemnifying Party may elect to defend or to seek to settle or compromiseParty, at such Indemnifying Party’s 's own expense and through counsel chosen by such Indemnifying Party’s own Party (which counsel shall be reasonably acceptable satisfactory to each the Indemnitee), may elect to defend any Third-party Claim. If an Indemnifying Party elects to defend a Third-party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect then, within ten Business Days after receiving notice of such Third-Party Claim. Within 30 days of the receipt of notice from an Indemnitee in accordance with Section 5.5(a) party Claim (or sooner, if the nature of such Third-Party party Claim so requires), the such Indemnifying Party shall notify each the Indemnitee of its election whether intent to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim)do so, and each such Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Party party Claim. After notice from an Indemnifying Party to each an Indemnitee of its election to assume responsibility for the defense of a Third-Party party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V III for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, that if such Indemnitee shall have the defendants in any right to employ one law firm as counsel to represent such claim include both Indemnitee (which firm shall be reasonably acceptable to the Indemnifying Party and one or more Indemnitees and Party) if, in such Indemnitees’ Indemnitee's reasonable judgment there exists judgment, either a conflict of interest between such Indemnitees Indemnitee and the such Indemnifying Party exists in respect of such Indemnitees shall have the right claim or there may be defenses available to employ separate counsel such Indemnitee which are different from or in addition to those available to such Indemnifying Party, and in that event (i) the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith(it being understood, or (iii) to approve the amount of the settlementhowever, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, that the Indemnifying Party shall not be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.liable
Appears in 1 contract
Sources: Master Separation Agreement (Eagle Geophysical Inc)
Procedure for Indemnification. (a) If an Indemnitee Indemnified Person shall receive written notice or otherwise learn of the assertion by a person Person (including including, without limitation, any governmental entityGovernmental Authority) who is not a party to this Agreement or to any of the Transaction Documents Related Agreements of any claim or of the commencement by any such Person of any action (a “Third-Party Claim”) Action with respect to which an Indemnifying Party may be obligated to provide indemnification pursuant to this AgreementAgreement (a "Third-Party Claim"), each such Indemnitee Indemnified Person shall give each such the Indemnifying Party written notice thereof promptly after becoming aware of such Third-Party Claim; provided, however, that the failure of any Indemnitee Indemnified Person to give notice as required by this Section 5.5 5.04 shall not relieve each the Indemnifying Party of its obligations under this Article V, except to the extent that each such Indemnifying Party is materially prejudiced by such failure to give notice. Such notice shall describe the Third-Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been claimed against or may be sustained by each such IndemniteeIndemnified Person.
(b) An Indemnifying Party may elect to defend or to seek to settle or compromise, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel reasonably acceptable to each Indemnitee, any Third-Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect of such Third-Party Claim. Within 30 15 days of the receipt of notice from an Indemnitee Indemnified Person in accordance with Section 5.5(a5.04(a) (or sooner, if the nature of such Third-Party Claim so requires), the Indemnifying Party shall notify each Indemnitee the Indemnified Person of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee the Indemnified Person of its election within 30 15 days after receipt of such notice from each Indemniteethe Indemnified Person, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim), and each Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each Indemnitee of its An election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees and the Indemnifying Party such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any Indemnifying Party elects not to assume responsibility for a such Third-Party Claim (which election may only be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall is not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates covered as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after under the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim grounds specified in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.5.01 or
Appears in 1 contract
Procedure for Indemnification. (a) If an Indemnitee any party shall receive notice of any Action brought, asserted, commenced or otherwise learn of the assertion pursued other than by a person DuPont Party or a Conoco Party (hereinafter a "Third Party Claim"), with respect to which a DuPont Party or a Conoco Party is or may be entitled to an Indemnity Payment, it shall give the potential Indemnifying Party prompt notice thereof (including any governmental entitypleadings relating 50 57 thereto) who is after becoming aware of such Third Party Claim, specifying in reasonable detail the nature of such Third Party Claim and the amount or estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim); provided, however, that the failure of a party to give notice as provided in this Agreement Section 6.3(a) shall not relieve any Indemnifying Party of its indemnification obligations under this Article VI, except to the extent that any Indemnifying Party is actually prejudiced by such failure to give notice.
(b) For any Third Party Claim concerning which notice is required to be given under subparagraph (a) of this Section 6.3, an Indemnifying Party may elect to defend the Third Party Claim through counsel appointed by the Indemnifying Party, which counsel shall be reasonably satisfactory to the Indemnitee. An Indemnifying Party electing to defend a Third Party Claim must (i) notify the Indemnitee of its election to defend within 30 days of receipt of notice of such claim pursuant to Section 6.3(a) or to any sooner if the nature of the Transaction Documents Third Party Claim so requires and (ii) acknowledge and agree in writing that if such Third Party Claim is adversely determined, such Indemnifying Party will have an obligation to pay Indemnity Payments to the Indemnitee in respect of the Indemnifiable Losses relating to such Third Party Claim and that such Indemnifying Party waives all defenses it may have to contest such obligation. Notwithstanding the foregoing, DuPont, in its sole discretion, upon written notice (which notice shall include DuPont's basis for electing to defend such Third Party Claim(s) and whether or not DuPont acknowledges its liability for Indemnity Payments with respect to such Third Party Claim(s) in accordance with the prior sentence), may elect to defend (or assume the defense of) any Third Party Claim or series of related Third Party Claims that:
(i) relate in any way to the Conoco Business, Transferred Assets or the Assumed Liabilities if a DuPont Party is named a party thereto and if (x) DuPont's or one of the Retained Subsidiaries' ability to conduct its business could be impaired in any significantly adverse manner as a result of any claim injunctive relief sought or (y) an adverse resolution of such Third Party Claim (or series of related Third Party Claims) presents in the good faith judgment of DuPont's General Counsel a reasonable risk of having an adverse effect on the business, operations, financial condition, results of operations or prospects of (1) DuPont and the Retained Subsidiaries, taken as a whole, in an amount greater or equal to $300 million or (2) one of the commencement by any Retained Subsidiaries organized outside the United States in an amount greater than or equal to $50 million, in which case
(A) DuPont or one of the Retained Subsidiaries shall pay all costs and expenses incurred in connection with the defense of such Person Third Party Claim(s) if DuPont or one of any action the Retained Subsidiaries is the Indemnifying Party with respect to such Third Party Claim(s) or (a “Third-B) such costs and expenses shall be included in DuPont's or one of the Retained Subsidiary's Losses if Conoco or one of its Subsidiaries is the Indemnifying Party Claim”with respect to such Third Party Claim(s); or
(ii) with respect to which an Indemnifying Party both parties hereto, or Conoco and a Retained Subsidiary, or DuPont and a Subsidiary of Conoco may be Indemnifying Parties, and to which paragraph (i) above does not apply and as to which, in the good faith judgement of the General Counsel of DuPont, the portion of the aggregate Liability that is the responsibility of DuPont and any Retained Subsidiaries (after taking into account indemnification obligations hereunder) equals or exceeds the portion of such Liability that is the responsibility of Conoco and any Subsidiaries of Conoco. In any case in which both DuPont and Conoco may be Indemnifying Parties with respect to a Third-Party Claim, regardless of whether DuPont has the right to defend pursuant to this paragraph (b)(ii), all costs and expenses shall be paid by the party obligated to provide indemnification make any Indemnification Payment to the other, if they are not both required to do so, and if they are both so required, or neither is so required, then all costs and expenses shall be paid by the parties pro rata based on their respective proportionate liability for any settlement or judgment reached or entered (after taking into account any Indemnification Payments pursuant to this Agreement). If neither party has any liability to a third party, each such the parties shall share the fees and expenses equally.
(c) The Indemnifying Party's right to defend any Third Party Claim includes the right (after consultation with the Indemnitee shall give each such Indemnifying Party following at least five business days written notice thereof promptly after becoming aware thereof) to compromise, settle or consent to the entry of any judgment or determination of liability concerning such Third-Third Party Claim; provided, however, that the failure of any Indemnitee to give notice as required by this Section 5.5 shall not relieve each Indemnifying Party of its obligations under this Article V, except to the extent that each such Indemnifying Party is prejudiced by such failure to give notice. Such notice shall describe the Third-Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
(b) An Indemnifying Party may elect to defend or to seek to settle or compromise, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel reasonably acceptable to each Indemnitee, any Third-Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect of such Third-Party Claim. Within 30 days of the receipt of notice from an Indemnitee in accordance with Section 5.5(a) (or sooner, if the nature of such Third-Party Claim so requires), the Indemnifying Party shall notify each Indemnitee of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim), and each Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each Indemnitee of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V for any legal compromise, settle or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees and the Indemnifying Party such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory consent to the Indemnifying Party) shall be paid by each such Indemnifying Party. If entry of judgment or determination of liability concerning any Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Third Party Claim without prior written notice to each such Indemnifying Party, which shall have approval by the option within fifteen days following Indemnitee if the receipt terms or conditions of such notice (i) to reject the compromise, settlement and assume all past and future responsibility for the claimor consent would, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense reasonable judgment of the claimIndemnitee, in which event each such Indemnifying Party shall have no further right to contest a significantly adverse financial impact or an adverse effect upon the amount or reasonableness ongoing operations of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount Indemnitee. Notwithstanding any other provision of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 6.3, unless otherwise agreed to by the parties in writing, no party shall enter into any compromise or settlement or consent to the contrary, an Indemnifying Party shall entry of any judgment which does not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates include as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee the third party of a written release of both the Indemnitee and the Indemnifying Party from all further liability concerning such Third Party Claim.
(d) In the event that counsel for both the defending party and the non-defending party is required and joint counsel cannot adequately represent the interests of both the defending party and the non-defending party due to a conflict of interest, the non-defending party shall have the right to participate in respect the defense of any Third Party Claim by employing separate counsel at the expense of such Thirdnon-defending party without a right of reimbursement from the defending party. In addition, in all cases, the non-defending party may participate in the defending party's defense of any Third Party ClaimClaim in which the non-defending party has any interest by employing separate counsel; provided, however, that (i) the defending party shall control, manage and direct the defense of such Third Party Claim and (ii) such settlement does not provide for any the non-monetary relief by defending party's participation shall be at the non-defending party's cost and expense without a right of reimbursement from the defending party.
(e) If the party having the right to elect to defend a particular Third Party Claim pursuant to Section 6.3(b) elects not to defend, or fails to respond regarding its election to defend in a timely manner, a particular Third Party Claim, the other party shall defend such Third Party Claim without any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify prejudice to its rights to indemnification from the Indemnifying Party in writing that such Indemnitee declines pursuant to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expensethis Article VI. In such eventcase, (i) the obligation Indemnitee shall have the right to compromise, settle or consent to the entry of such Indemnifying Party to each such Indemnitee any judgment with respect to such Third-Third Party Claim as provided in Section 6.3(c), (ii) the amount of such compromise, settlement or judgment shall be equal determinative of the amount of the Loss (but such compromise, settlement or judgment shall not necessarily be determinative of which party hereunder is entitled to indemnification) and (iiii) the Indemnifying Party shall bear all costs and expenses of each defending such Indemnitee prior Third Party Claim; provided, however, that if both parties may be Indemnifying Parties with respect to such Third Party Claim, the date such Indemnifying Party notifies each such Indemnitee non-defending party shall reimburse the defending party promptly upon demand by the defending party for the non-defending party's proportionate share of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual all out-of-pocket amount each costs and expenses reasonably incurred in connection with the defending party's defense of such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Third Party Claim.
(ef) Any claim on account of an Indemnifiable Loss which does not result from a ThirdThe non-Party Claim defending party shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response make available to the claim. If each defending party and its counsel all employees, books and records, communications, documents, items or matters within its knowledge, possession or control that are necessary, appropriate or reasonably deemed relevant by the defending party with respect to such Indemnifying Party does not so notify each such Indemnitee during such 30-day perioddefense; provided, such Indemnifying Party however, that subject to Section 8.6 hereof, nothing in this subparagraph (f) shall be deemed to have refused to accept responsibility require a party to make payment. If each available books and records, communications, documents or items which (i) in such Indemnifying Party does party's good faith judgment could result in a waiver of any Privilege or (ii) such party is not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free permitted to pursue such remedies as may be make available to such Party under applicable law or under this Agreement because of any Law or any confidentiality obligation to a third party, in which case such party shall use its reasonable efforts to seek a waiver of or other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of relief from such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Partyconfidentiality restriction.
(g) In Upon final judgment, determination, settlement or compromise of any Third Party Claim, and unless otherwise agreed by the parties in writing, the Indemnifying Party shall pay promptly on behalf of the Indemnitee, or to the Indemnitee in reimbursement of any amount theretofore required to be paid by it, the amount of any and all Losses suffered by such Indemnitee (other than attorneys' fees incurred by such Indemnitee in the event of payment by an it participates in its own defense, except in the circumstance where the Indemnifying Party has failed to assume the defense of any Indemnitee in connection with any Third-Third Party Claim) with respect to such claim as determined by such final judgment, determination, settlement or compromise. Upon the payment in full by the Indemnifying Party of such amount, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Third Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
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Sources: Restructuring, Transfer and Separation Agreement (Conoco Inc /De)
Procedure for Indemnification. DEFENSE OF THIRD PARTY CLAIMS. -------------------------------------------------------------
(a) If As soon as reasonably practicable after receipt by a Person entitled to indemnity under Section 10.2 or 10.3 (an Indemnitee shall receive "Indemnified Person") ------------ ---- ------------------ of notice or otherwise learn of the assertion by of a person third-party claim or Proceeding (collectively, a "Third Party Claim") against it, the Indemnified Person ----------------- will, if a claim is to be made against a Person obligated to indemnify under such Section (an "Indemnifying Person"), give notice to the Indemnifying ------------------- Person of the assertion of such claim in writing and describing in reasonable detail (to the extent known) the nature of the claim, the grounds of the claim and the calculation (or an estimate) of the amount of the claim. Thereafter, the Indemnified Person shall deliver to the Indemnifying Person, promptly after the Indemnified Person's receipt thereof, copies of all notices and documents (including any governmental entity) who is court papers), if any, received by the Indemnified Person relating to the Third Party Claim. An Indemnified Person's failure to notify or delay in notifying an Indemnifying Person of a Third Party Claim will not a party to this Agreement or to any of relieve the Transaction Documents of any claim or of the commencement by any such Indemnifying Person of any action Liability that it may have to the Indemnified Person, except to the extent that the Indemnifying Person demonstrates that the resolution of such Third Party Claim is prejudiced by the Indemnified Person's failure or delay to give such notice.
(a “Third-b) If any Third Party Claim is brought against an Indemnified Person and the Indemnified Person gives notice to the Indemnifying Person of such Third Party Claim”) with respect , the Indemnifying Person will be entitled to which an Indemnifying Party may be obligated participate in and, to provide indemnification pursuant the extent that it wishes, to this Agreement, each such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after becoming aware assume and control the defense of such Third-Third Party ClaimClaim with counsel selected by the Indemnifying Person; provided, however, that such counsel is not reasonably objected to by the failure of any Indemnitee Indemnified Person (unless the Indemnifying Person is also a party to give notice as required such Proceeding and the Indemnified Person shall have been advised by this Section 5.5 shall not relieve each Indemnifying Party of its obligations under this Article V, except counsel that there are one or more legal or equitable defenses available to the extent Indemnifying Person and that each the joint representation of both parties by the same counsel would create a conflict of interest, in which case the Indemnified Party may, at its option, assume and control the defense of such Indemnifying Party is prejudiced by such failure to give notice. Such notice shall describe the Third-Third Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
(b) An Indemnifying Party may elect to defend or to seek to settle or compromise, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel reasonably acceptable to each Indemnitee, any Third-Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect of such Third-Party Claim. Within 30 days of the receipt of notice from an Indemnitee in accordance with Section 5.5(a) (or sooner, if the nature of such Third-Party Claim so requires), the Indemnifying Party shall notify each Indemnitee of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim), and each Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each Indemnitee of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees and the Indemnifying Party such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate 's expense using counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party). If any the Indemnifying Party Person elects not to assume responsibility for the defense of any Third Party Claim, it shall within ten Business Days after its receipt of notice of a Third-Third Party Claim (which from the Indemnified Person, notify the Indemnified Person in writing of such election. After notice from the Indemnifying Person to the Indemnified Person of its election may be made only in to assume the event defense of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3such Proceeding, the Indemnifying Person will not, as the case may be)long as it diligently conducts such defense, each such Indemnitee may defend or (subject be liable to the following sentence) seek Indemnified Person under this Article for any fees of other counsel or any other expenses with respect to compromise or settle such Third-Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt defense of such notice (i) to reject Proceeding, in each case subsequently incurred by the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures Indemnified Person in connection with the claimdefense of such Proceeding, other than reasonable costs of investigation. If the Indemnifying Person chooses to defend or prosecute a Third Party Claim, all the Indemnified Persons shall provide reasonable cooperation in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the Indemnifying Person's request) the provision to the Indemnifying Person of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. If the Indemnifying Person assumes the defense of a Proceeding, (i) the Indemnified Person shall agree to any reasonable settlement, compromise or discharge of a Third Party Claim that the Indemnifying Person may recommend and that by its terms (1) obligates the Indemnifying Person to pay the full amount of the Liability in connection with such Third Party Claim, (2) expressly releases in full the Indemnified Person with respect to such Third Party Claim, (3) involves only money damages and does not seek an injunction or other equitable relief, and (4) would not otherwise adversely affect the Indemnified Person, and (ii) to reject the settlement and continue to refrain from participation in the defense event that the terms of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the any settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, compromise or (iv) to approve and agree to pay the settlement. In the event such Indemnifying discharge of a Third Party makes no response to such written notice from an Indemnitee, Claim that the Indemnifying Person may recommend do not release the Indemnified Person completely in connection with such Third Party shall Claim or would otherwise adversely affect the Indemnified Person, no compromise or settlement of such claims may be deemed to have elected option (ii)effected by the Indemnifying Person without the Indemnified Person's written consent.
(c) If notice is given to an Indemnifying Person of the commencement of any Third Party chooses Claim and the Indemnifying Person does not, within ten Business Days after the Indemnified Person's notice is given, give notice to defend or the Indemnified Person of its election to seek to compromise any Third-assume the defense of such Third Party Claim, each Indemnitee shall make available the Indemnifying Person will be bound by any determination made with respect to such Indemnifying Third Party Claim or any personnel and any books, records compromise or other documents within its control or which it otherwise has settlement effected in good faith by the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying PartyIndemnified Person.
(d) Notwithstanding anything else the foregoing, if an Indemnified Person determines in this Section 5.5 to the contrary, an Indemnifying Party shall not settle good faith that there is a reasonable probability that a Proceeding may adversely affect it or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date its Affiliates other than as a result of each monetary damages for which it would be entitled to indemnification under this Agreement, the Indemnified Person may, by notice to the Indemnifying Person, assume the exclusive right to defend, compromise or settle such Indemnitee’s continuing to pursue such Third-Party ClaimProceeding, but the Indemnifying Person will not be bound by any determination of a Proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld).
(e) Any claim on account Notwithstanding the provisions of an Indemnifiable Loss which does not result Sections 10.7(a) through ---------------- 10.7(d), Buyer will be entitled to assume control of any Cleanup and related ------- Proceeding arising from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable mannerEnvironmental, Health and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claimSafety Liability.
Appears in 1 contract
Procedure for Indemnification. (a) If an Indemnitee any Person shall receive claim indemnification (the "Indemnified Party") hereunder for any claim other than a third party claim, the Indemnified Party shall promptly give written notice or otherwise learn to the other party from whom indemnification is sought (the "Indemnifying Party") of the assertion by a person (including any governmental entity) who is not a party to this Agreement or to any nature of the Transaction Documents claim in detail and amount of the claim. If an Indemnified Party shall claim indemnification hereunder arising from any claim or demand of the commencement by a third party, including any such Person of any action Authority (a “"Third-Party Claim”"), the Indemnified Party shall promptly give written notice (a "Third-Party Notice") to the Indemnifying Party of the basis for such claim or demand, setting forth the nature of the claim or demand in detail and the amount of the claim. The rights of the Indemnified Party to be indemnified hereunder shall not be adversely affect by its failure to give, or its failure to timely give, such notice with respect thereto unless, and if so, only to which the extent that, the Indemnifying Party is materially prejudiced thereby.
(b) In the event that an Indemnifying Party which receives notice of an indemnification claim contests its liability for such indemnification claim, such party shall send written notice to the Indemnified Party of its dispute of indemnification within 15 days thereof. If the parties are unable to resolve such dispute of indemnification within 60 days after the date of the notice of dispute, the Indemnified Party may bring an action against the Indemnifying Party to enforce such indemnification claim.
(i) The Indemnifying Party shall have the right, exercisable by written notice to the Indemnified Party of the commencement of or assertion of any Third Party Claim, to assume the defense of such Third Party Claim which involves (and continues to involve) solely monetary damages; provided that (A) the Indemnifying Party expressly agrees in such notice, that as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to provide indemnification pursuant to this Agreement, each satisfy and discharge the Third Party Claim; and (B) the defense or settlement of such Indemnitee shall give each such Third Party Claim by the Indemnifying Party written notice thereof promptly after becoming aware will not, in the reasonable judgment of such Third-Party Claimthe Indemnified Party, have an adverse effect on the Indemnified Party's business (the conditions set forth in clauses (A) and (B) are collectively referred to as the "Litigation Conditions"); provided, however, that if the failure of parties in any Indemnitee to give notice as required by this Section 5.5 action shall not relieve each include both an Indemnifying Party of its obligations under this Article Vand an Indemnified Party, except and the Indemnified Party shall have reasonably concluded that there are available different or additional defenses to the extent that each Indemnified Party, the Indemnified Party shall have the right to select separate counsel to participate in the defense of such Indemnifying Party is prejudiced by such failure to give notice. Such notice shall describe the Third-Party Claim in reasonable detailaction on its behalf; and provided further, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
(b) An Indemnifying Party may elect to defend or to seek to settle or compromisehowever, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel reasonably acceptable to each Indemnitee, any Third-Party Claim, provided that the Indemnifying Party must confirm shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Indemnifying Party no longer satisfies the Litigation Conditions.
(ii) With respect to any Third Party Claim for which indemnification is available ("Indemnified Claim") that is combined or joined with one or more claims which are not Indemnified Claims or with respect to any Indemnified Claim under which both the Indemnified Party and the Indemnifying Party may be liable, Sellers or Purchasers, as the case may be, shall have the right to participate in, and control the defense of, such claims as to which it has sole liability, at its own expense and with its own counsel. Purchasers and Sellers shall cause their respective counsel to cooperate in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect the defense of such Third-Third Party Claims, and shall endeavor to coordinate their defenses with a view towards avoiding prejudice to the overall defense of the Third Party Claim. Within 30 .
(iii) Subject to the foregoing, if the Indemnifying Party elects to compromise or defend such Third Party Claim, it shall within 20 days of the receipt of notice from an Indemnitee in accordance with Section 5.5(a) (or sooner, if the nature of such Third-the Third Party Claim so requires)) notify the Indemnified Party of its intent to do so, and the Indemnified Party shall reasonably cooperate, at the expense of the Indemnifying Party shall notify each Indemnitee of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each IndemniteeParty, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim), and each Indemnitee shall cooperate in the compromise of, or defense or settlement or compromise of against, such Third-Third Party Claim. After notice from an Indemnifying Party to each Indemnitee of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by If the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees and the Indemnifying Party such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any Indemnifying Party elects not to assume responsibility for a Third-compromise or defend the Third Party Claim Claim, fails to notify the Indemnified Party of its election as herein provided, or fails to satisfy the Litigation Conditions, the Indemnified Party may, subject to clause (which election may be made only in v) of this Section 10.6(c), pay, compromise or defend such Third Party Claim.
(iv) The Indemnifying Party or the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3Indemnified Party, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice right to participate in (i) to reject the settlement and assume all past and future responsibility for the claimbut not control), including reimbursing each Indemnitee for prior expenditures in connection with the claimat its own expense, or (ii) to reject the settlement and continue to refrain from participation in the defense of any Third Party Claim which the claim, other party is defending as provided in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlementthis Agreement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, If the Indemnifying Party shall be deemed to have elected option elects (ii).
(cand is permitted hereunder) If an Indemnifying Party chooses to defend or any claim, the Indemnified Party shall, subject to seek to compromise any Third-Party Claimreceipt of a reasonable confidentiality agreement, each Indemnitee shall make available to such the Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defensecontrol, within and the reasonable discretion assistance of each such its employees, for which the Indemnifying party shall be obliged to reimburse the Indemnified Party for the reasonable out-of-pocket expenses of making them available.
(v) The Indemnifying Party, if it shall have assumed the defense of any Third Party Claim as provided in this Agreement, shall not consent to a settlement of, or the entry of any judgment arising from, any such Third Party Claim without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed). The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, enter into any compromise or settlement which commits the Indemnified Party to take, or to forbear to take, any action. The Indemnified Party shall have the sole and exclusive right to settle any Third Party Claim, on such terms and conditions as it deems reasonably appropriate, to the extent such Third Party Claim involves equitable or other non-monetary relief binding solely on the Indemnified Party and that would not involve a Purchaser Loss or Seller Loss (as the case may be) with respect to which the Indemnifying Party may have an indemnification obligation. The Indemnified Party shall have the right to settle any Third Party Claim involving monetary damages or that would involve a Purchaser Loss or Seller Loss (as the case may be) with respect to which the Indemnifying Party may have an indemnification obligation (a "Non-Equitable Only Claim") with the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed. At the Indemnifying Party's request in connection with the settlement of a Non-Equitable Only Claim, the Indemnified Party shall provide the Indemnifying Party with a good faith estimate (which may be expressed within a range of values), based on such facts as are reasonably available to the Indemnified Party at the time the Non-Equitable Only Claim is proposed to be settled, of the amount of Purchaser Losses or Seller Losses (as the case may be) that the Indemnified Party expects to incur as a result of such settlement. Such estimate shall not limit an Indemnified Party's right to indemnification under this Article X to the extent facts not reasonably available to the Indemnified Party at the time such estimate was prepared or facts later discovered or established by the Indemnified Party establish Purchaser Losses or Seller Losses (as the case may be) in excess of amounts set forth in such estimate.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability Amounts paid in respect of such Third-Party Claim, and (ii) such settlement does indemnification obligations of the parties shall be treated as an adjustment to the Purchase Price. Whether or not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party chooses to defend or prosecute any claim involving a third party, subject to Section 10.6, all the parties hereto shall cooperate in writing that the defense or prosecution thereof and shall furnish such Indemnitee declines to accept any records, information and testimony, and attend such settlement or compromiseconferences, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Partydiscovery proceedings, at each such Indemnitee’s sole expense. In such eventhearings, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs trials and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder)appeals, plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred reasonably requested in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 1 contract
Procedure for Indemnification. (a) If an any Indemnitee shall receive receives notice or otherwise learn of the assertion by a person (including any governmental entity) who is not a party to this Agreement or to any of the Transaction Documents of any claim or of the commencement by any such Person of any action (a “Third-Party Claim”) Claim with respect to which an Indemnifying Party may be is obligated under this Agreement to provide indemnification pursuant to this Agreementindemnification, each such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after becoming aware of such Third-Party Claim; provided, however, that the failure of any Indemnitee to -------- ------- give notice as required by provided in this Section 5.5 4.04 shall not relieve each any Indemnifying Party of its obligations under this Article VIV, except to the extent that each such Indemnifying Party is actually prejudiced by such failure to give notice. Such notice shall describe the such Third-Party Claim in reasonable detaildetail and, and if practicable, shall indicate the estimated amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
(b) An Indemnifying Party may elect to defend or to seek to settle or compromiseParty, at such Indemnifying Party’s 's own expense and through counsel chosen by such Indemnifying Party’s own Party (which counsel shall be reasonably acceptable satisfactory to each the Indemnitee), may elect to defend any Third-Third- Party Claim; provided, provided however, that such an election by the Indemnifying -------- ------- Party must confirm in writing that it agrees that each shall be deemed an admission of its obligation to Indemnify the Indemnitee is entitled with respect to indemnification hereunder in respect of such Third-Party Claim. Within 30 days If an Indemnifying Party elects to defend a Third-Party Claim, then, within ten (10) Business Days after receiving notice of the receipt of notice from an Indemnitee in accordance with Section 5.5(a) such Third-Party Claim (or sooner, if the nature of such Third-Party Claim so requires), the such Indemnifying Party party shall notify each the Indemnitee of its election whether intent to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim)do so, and each such Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Party Claim. Such Indemnifying Party shall pay such Indemnitee's reasonable out-of-pocket expenses incurred in connection with such cooperation. After notice from an Indemnifying Party to each an Indemnitee of its election to assume responsibility for the defense of a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V IV for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, that if such Indemnitee shall have the defendants in any right to employ one law -------- ------- firm as counsel to represent such claim include both Indemnitee (which firm shall be reasonably acceptable to the Indemnifying Party and one or more Indemnitees and Party) if, in such Indemnitees’ Indemnitee's reasonable judgment there exists judgment, either a conflict of interest between such Indemnitees Indemnitee and the such Indemnifying Party exists in respect of such Indemnitees shall have the right claim or there may be defenses available to employ separate counsel such Indemnitee which are different from or in addition to those available to such Indemnifying Party, and in that event (1) the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying PartyParty and (2) each of such Indemnifying Party and such Indemnitee shall have the right to run its own defense in respect of such claim. If any an Indemnifying Party elects not to assume responsibility for defend against a Third-Party Claim Claim, or fails to notify an Indemnitee of its election as provided in this Section 4.04 within the period of ten (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.310) Business Days described above, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to defend, compromise and settle such Third- Party Claim; provided, however, that no such Indemnitee may compromise or -------- ------- settle any such Third-Party Claim without the prior written notice to each such consent of the Indemnifying Party, which consent shall have not be withheld unreasonably. Notwithstanding the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemniteeforegoing, the Indemnifying Party shall be deemed to have elected option not, without the prior consent of the Indemnitee, (ii).
(c1) If an Indemnifying Party chooses to defend settle or to seek to compromise any Third- Party Claim or consent to the entry of any judgment which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnitee of a written release from all Liability in respect of such Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records Claim or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d2) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof in any manner that may adversely affect the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 1 contract
Procedure for Indemnification. Promptly upon becoming aware of a ----------------------------- claim for indemnification hereunder (whether as a result of any third party claim, suit, action or proceeding, or in connection with any other Losses which the indemnified party deems to be within the ambit of this Article XIII), the indemnified party shall give, in accordance with the terms of Section 16.1 below and Section 2(e) of the Depository Agreement, a notice of claims ("Claims Notice") to the indemnifying party, and if applicable, to the Depository Agent pursuant to the terms of the Depository Agreement; provided, however, that to -------- ------- the extent such notice is given after the Distribution, and the indemnifying party consists of the Indemnifying Shareholders, such notice shall be given to the Indemnification Committee, on behalf of the Indemnifying Shareholders, and thereafter, all references, in this Section 13.4 and in Sections 13.5 through 13.7 of this Agreement, to the indemnifying party, shall be to and mean the Indemnification Committee, on behalf of the Indemnifying Shareholders; provided, -------- further, that any claims made by any of Purchaser's Indemnified Persons shall be ------- made by Purchaser on behalf of such Indemnified Person (at the expense of such Indemnified Person who shall advance such expenses if requested by Purchaser) and any proceeds of any such claim received by Purchaser hereunder shall be forwarded promptly by Purchaser to such Indemnified Person. A Claims Notice shall set forth: (a) If an Indemnitee shall receive notice or otherwise learn the aggregate amount of the assertion by indemnified party's Losses or an estimate thereof, in each case to the extent known or determinable at the time such Claims Notice is delivered, (b) a person (including any governmental entity) who is not a party to this Agreement or to any description in reasonable detail of the Transaction Documents individual items of any claim such Losses included in the amount so stated, the date each such item was paid or properly accrued or arose, and the nature of the commencement by any such Person of any action (a “Third-Party Claim”) with respect misrepresentation, breach or claim to which an Indemnifying Party may such item is related, and (c) where the indemnified party is Purchaser or one of Purchaser's Indemnified Persons, a calculation, based on the provisions of Section 13.3 of the number of Escrow Shares to be obligated released to provide indemnification pursuant to this Agreement, each the indemnified person in satisfaction of the claim made in such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after becoming aware Claims notice. The giving of such Third-Party ClaimClaims Notice shall not be a condition precedent to indemnification hereunder; provided, however, that the failure of any Indemnitee to give reasonably prompt notice as required shall reduce the indemnified party's recovery from the indemnifying party only by this Section 5.5 shall not relieve each Indemnifying Party of its obligations under this Article V, except an amount equal to the extent that each such Indemnifying Party is prejudiced actual proved Losses caused by such failure delay. If the indemnifying party does not object to give notice. Such notice such claim within thirty (30) days of receiving such Claims Notice, the indemnified party shall describe the Third-Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
(b) An Indemnifying Party may elect to defend or to seek to settle or compromise, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel reasonably acceptable to each Indemnitee, any Third-Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is conclusively entitled to indemnification hereunder in respect of such Third-Party Claim. Within 30 days of the receipt of notice from an Indemnitee in accordance with Section 5.5(a) (or sooner, if the nature of such Third-Party Claim so requires), the Indemnifying Party shall notify each Indemnitee of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim), and each Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each Indemnitee of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees and the Indemnifying Party such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, recover the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization and Liquidation (Vertel Corp)
Procedure for Indemnification. (a) If an Indemnitee shall receive notice or otherwise learn of the assertion by a person (including any governmental entity) who is not a party to this Agreement or to any of the Transaction Documents of any claim or of the commencement by any such Person of any action (a “"Third-Party Claim”") with respect to which an Indemnifying Party may be obligated to provide indemnification pursuant to this Agreement, each such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after becoming aware of such Third-Party Claim; provided, however, that the failure of any Indemnitee to give notice as required by this Section 5.5 6.5 shall not relieve each the Indemnifying Party of its obligations under this Article VVI, except to the extent that each such Indemnifying Party is prejudiced by such failure to give notice. Such notice shall describe the Third-Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
(b) An Indemnifying Party may elect to defend or to seek to settle or compromise, at such Indemnifying Party’s 's own expense and by such Indemnifying Party’s 's own counsel reasonably acceptable to each the Indemnitee, any Third-Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each the Indemnitee is entitled to indemnification hereunder in respect of such Third-Party Claim. Within 30 days of the receipt of notice from an Indemnitee in accordance with Section 5.5(a6.5(a) (or sooner, if the nature of such Third-Party Claim so requires), the Indemnifying Party shall notify each the Indemnitee of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each the Indemnitee of its election within 30 days after receipt of such notice from each the Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim), and each such Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each an Indemnitee of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V VI for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ ' reasonable judgment there exists a conflict of interest between such Indemnitees and the Indemnifying Party Party, such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any an Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 6.2 or 5.36.3, as the case may be), each ) such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim. Notwithstanding the foregoing, an Indemnitee may not settle or compromise any Third-Party Claim without prior written notice to each such the Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject disapprove the settlement and assume all past and future responsibility for the claim, including reimbursing each the Indemnitee for prior expenditures in connection with the claim, or (ii) to reject disapprove the settlement and continue to refrain from participation in the defense of the claim, in which event each such the Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each the Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such the Indemnifying Party’s 's right to contest each the Indemnitee’s 's right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such the Indemnifying Party makes no response to such written notice from an the Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each the Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 6.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each the Indemnitee of a written release from all liability in respect of such Third-Party Claim, Claim and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any the Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim Claim, free of any participation by such Indemnifying Party, at each such Indemnitee’s 's sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), ) plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s 's continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an the Indemnitee to each the applicable Indemnifying Party. Each such Such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claimrespond thereto. If each such Indemnifying Party does not so notify each such Indemnitee during respond within such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party party under applicable law or under this Agreement, the Merger Agreement or any other agreement or arrangement between the PartiesIndemnification Agreement.
(f) In addition to any adjustments required pursuant to Section 5.46.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each the Indemnitee to each the Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 1 contract
Sources: Distribution Agreement (Insignia Financial Group Inc /De/)
Procedure for Indemnification. (a) If Except as may be set forth in a Related Agreement, if an Indemnitee shall receive notice or otherwise learn of the assertion by a person Person (including including, without limitation, any governmental entity) who is not a party to this Agreement or to any of the Transaction Documents Related Agreements of any claim or of the commencement by any such Person of any action Action (a “"Third-Party Claim”") with respect to which an Indemnifying Party may be obligated to provide indemnification pursuant to this Agreement, each such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after becoming aware of such Third-Party Claim; provided, however, PROVIDED that the failure of any Indemnitee to give notice as required by this Section 5.5 5.04 shall not relieve each the Indemnifying Party of its obligations under this Article V, except to the extent that each such Indemnifying Party is prejudiced by such failure to give notice. Such notice shall describe the Third-Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
(b) An Indemnifying Party may elect to defend or to seek to settle or compromise, at such Indemnifying Party’s 's own expense and by such Indemnifying Party’s 's own counsel reasonably acceptable to each Indemniteecounsel, any Third-Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each the Indemnitee is entitled to indemnification hereunder in respect of such Third-Party Claim. Within 30 days of the receipt of notice from an Indemnitee in accordance with Section 5.5(a5.04(a) (or sooner, if the nature of such Third-Party Claim so requires), the Indemnifying Party shall notify each the Indemnitee of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each the Indemnitee of its election within 30 days after receipt of such notice from each the Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim), and each such Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each an Indemnitee of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, PROVIDED that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ ' reasonable judgment there exists a conflict of interest between such Indemnitees and the such Indemnifying Party exists in respect of such claim, such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any an Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 5.01 or 5.35.02, as the case may be), each ) such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim Claim. Notwithstanding the foregoing, an Indemnitee may not settle or compromise any claim without prior written notice to each such the Indemnifying Party, which shall have the option within fifteen ten days following the receipt of such notice (i) to reject disapprove the settlement and assume all past and future responsibility for the claim, including reimbursing each the Indemnitee for prior expenditures in connection with the claim, or (ii) to reject disapprove the settlement and continue to refrain from participation in the defense of the claim, in which event each such the Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each the Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such the Indemnifying Party’s 's right to contest each the Indemnitee’s 's right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such the Indemnifying Party makes no response to such written notice from an the Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each the Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 5.04 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each the Indemnitee of a written release from all liability in respect of such Third-Party Claim, Claim (and (ii) provided further that such settlement does may not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents theretowithout the written consent of Indemnitee). In the event any the Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim Claim, free of any participation by such Indemnifying Party, at each such Indemnitee’s 's sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such the offer of settlement to settle or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus ) PLUS (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s 's continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an the Indemnitee to each the applicable Indemnifying Party. Each such Such Indemnifying Party shall have a period of 30 15 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claimrespond thereto. If each such Indemnifying Party does not so notify each respond within such Indemnitee during such 3015-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 3015-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party party under applicable law or under this Agreement or any other agreement or arrangement between the PartiesAgreement.
(f) In addition to any adjustments required pursuant to Section 5.45.03, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each the Indemnitee to each the Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
(h) Notwithstanding anything else in this Section 5.04 to the contrary, with respect to any Action pending at the time of the Distribution (a "Pending Action") with respect to which an Indemnifying Party may be obligated to provide indemnification pursuant to this Agreement, PEI or PriceSmart shall, at the request of the other party, cause the Retained Employee(s) or PriceSmart Employee(s), as the case may be, who were handling the defense, compromise or settlement of such Pending Action prior to the Distribution to continue to handle such defense, compromise or settlement following the Distribution (subject to the last two sentences of subsection (b) above). If such employees are employed by the Indemnitee, the Indemnitee shall keep the Indemnifying Party reasonably informed of the progress of, and the Indemnifying Party shall cooperate in, such defense, compromise or settlement.
Appears in 1 contract
Procedure for Indemnification. (a) If an Indemnitee shall receive When the Purchaser receives notice or otherwise learn of the assertion by a person (including any governmental entity) who is not a party to this Agreement or to any of the Transaction Documents of any claim or of made by third parties that is the commencement by any such Person of any action basis for a claim for indemnification under this Article 12 (a “Third-Third Party Claim”) with respect to which an Indemnifying or when the Purchaser has any other claim for indemnification other than a Third Party may be obligated to provide Claim that is the basis for a claim for indemnification pursuant to under this AgreementArticle 12 (“Other Claim”), each such Indemnitee the Purchaser shall promptly give each such Indemnifying Party written notice thereof promptly to the Sellers. Such notice shall contain in reasonable detail:
(i) a description of the facts and the nature of the claim;
(ii) a description of the grounds on which the Purchaser considers that the facts give rise to liability for an Indemnifiable Liability by the Sellers;
(iii) the amount claimed; and
(iv) the indication of the date the Purchaser or its Affiliates (including, for the avoidance of doubt, VRV Group) have received notice of a Third Party Claim or the date any of such Persons have acquired Knowledge of the circumstances or facts on which the Other Claim is based.
(b) The Purchaser shall use its Best Efforts to give any notice of Third Party Claims or Other Claims to the Sellers as soon as possible after becoming actually aware of such Third-Party Claimclaims; provided, that any delay by the Purchaser in giving such a notice shall not discharge the Sellers of their indemnification obligations under this agreement except and only to the extent the Sellers are prejudiced by such delay.
(c) The Purchaser shall, at the request of the Sellers, allow the Sellers to take the sole conduct of such actions in the name of the Purchaser or VRV Group provided, however, that the failure of any Indemnitee to give notice as required by this Section 5.5 Sellers shall not relieve each Indemnifying Party of its obligations under this Article V, except to the extent that each such Indemnifying Party is prejudiced by such failure to give notice. Such notice shall describe the Third-Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
(b) An Indemnifying Party may elect to defend or to seek to settle or compromise, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel reasonably acceptable to each Indemnitee, any Third-Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect of such Third-Party Claim. Within 30 days of the receipt of notice from an Indemnitee in accordance with Section 5.5(a) (or sooner, if the nature of such Third-Party Claim so requires), the Indemnifying Party shall notify each Indemnitee of its election whether permitted to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim), and each Indemnitee shall cooperate in the defense or settlement of any Third Party Claim in respect of any criminal liability, or injunctive relief, or that involves customers of VRV Group, and the Sellers shall confirm in writing their indemnification responsibility hereunder for any such Third Party Claim prior to assuming such defense or settlement. If the Sellers take sole conduct of the action, the Purchaser shall assure its reasonable co-operation for the purpose of allowing the Sellers to carry out an effective defense and permitting the Sellers to appoint attorneys or consultants (in each case at Sellers’ sole cost and expense). For the avoidance of doubt, the Sellers shall have the right take the sole conduct of the proceedings indicated in Section 12.1(iii) and the Purchaser shall cause the VRV Group to cooperate with the Sellers and act upon their instructions in relation to such proceedings.
(d) The Purchaser shall not, and shall cause VRV Group not to, make any admission of liability, agreement, settlement or compromise with any third party in relation to any Third Party Claim without the prior written consent of such Third-Party Claim. After notice from an Indemnifying Party to each Indemnitee of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereofSellers; provided, however, that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees and the Indemnifying Party such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any Indemnifying Party elects Sellers elect not to assume responsibility for sole conduct of any actions and a Third-Party Claim firm offer to settle is made to VRV Group or to the Purchaser, and the Sellers, but not the Purchaser, are willing to accept, the Purchaser or VRV Group (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3, as the case may be)) will be free not to enter into such settlement at their own expense, each such Indemnitee may defend or (subject and the relevant liability of the Sellers will be limited to the following sentenceamount of the proposed settlement.
(e) seek to compromise or settle such Third-Party Claim without prior Within 20 calendar days from receipt of the relevant notice in accordance with letter (a) above, the Sellers shall send a written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice Purchaser (a “Response”) stating whether:
(i) to reject the settlement and assume all past and future responsibility for Sellers consider that the claim, including reimbursing each Indemnitee for prior expenditures in connection with claim is covered by the claim, or provisions set forth under this agreement and: (iii) to reject accept the settlement and continue to refrain from participation in the defense amount of the claim, in which event each such Indemnifying Party case they shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve pay the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, claim within 5 Business Days of the Response; or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does do not provide for consider that the amount of the claim is correct, in which case any non-monetary relief of the Parties may bring the controversy to arbitration in accordance with Section 25.2 unless a different agreement is reached by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus relevant Parties; and
(ii) the lesser of (A) Sellers consider that the amount of claim is not covered under this agreement and consider they have no obligation to indemnify any offer of settlement or compromise Indemnifiable Liability, in which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee case, any of the Indemnifying Party’s response relevant Parties may bring the controversy to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim arbitration in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Partiesaccordance with Section 25.2.
(f) In addition relation to Section 12.1(iii)(c) the Sellers shall have the right prior to or after the Closing Date to cause the VRV Group to take any adjustments required reasonable actions (in each case at the Sellers’ sole cost and expense) against the relevant supplier in order to recover any amounts in connection with such recall. Any sum recovered by the VRV Group pursuant to this Section 5.4, if shall either reduce the amount of any Indemnifiable Loss shall, at any time subsequent Sellers liability or be passed on to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, Sellers in case the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying PartyPurchaser has been already indemnified.
(g) In relation to Section12.1(iii)(a) and (b) the event of payment by an Indemnifying Party Sellers shall have the right prior to or after the Closing Date to cause the VRV Group to take any Indemnitee reasonable actions (in each case at the Sellers’ sole cost and expense) against any third party from whom the VRV Group may have the right to recover any sum for which it is deemed responsible in connection with any Third-Party Claim, such Indemnifying Party the facts described in Section12.1(iii)(a) and (b). Any sum recovered by the VRV Group pursuant to this paragraph shall either reduce the Sellers liability or be subrogated passed on to and shall stand the Sellers in case the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claimPurchaser has been already indemnified.
Appears in 1 contract
Procedure for Indemnification. (a) If an any Indemnitee shall receive receives notice or otherwise learn of the assertion by a person (including any governmental entity) who is not a party to this Agreement or to any of the Transaction Documents of any claim or of the commencement by any such Person of any action (a “Third-Party Claim”) party Claim with respect to which an Indemnifying Party may be is obligated under this Separation Agreement to provide indemnification pursuant to this Agreementindemnification, each such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after becoming aware of such Third-Party party Claim; provided, however, that the failure of any Indemnitee to give notice as required by provided in this Section 5.5 3.03 shall not relieve each any Indemnifying Party of its obligations under this Article VIII, except to the extent that each such Indemnifying Party is actually prejudiced by such failure to give notice. Such notice shall describe the such Third-Party party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by each such Indemnitee.
(b) An Indemnifying Party may elect to defend or to seek to settle or compromiseParty, at such Indemnifying Party’s 's own expense and through counsel chosen by such Indemnifying Party’s own Party (which counsel shall be reasonably acceptable satisfactory to each the Indemnitee), may elect to defend any Third-party Claim. If an Indemnifying Party elects to defend a Third-party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect then, within ten Business Days after receiving notice of such Third-Party Claim. Within 30 days of the receipt of notice from an Indemnitee in accordance with Section 5.5(a) party Claim (or sooner, if the nature of such Third-Party party Claim so requires), the such Indemnifying Party shall notify each the Indemnitee of its election whether intent to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim)do so, and each such Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Party party Claim. After notice from an Indemnifying Party to each an Indemnitee of its election to assume responsibility for the defense of a Third-Party party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V III for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, that if such Indemnitee shall have the defendants in any right to employ one law firm as counsel to represent such claim include both Indemnitee (which firm shall be reasonably acceptable to the Indemnifying Party and one or more Indemnitees and Party) if, in such Indemnitees’ Indemnitee's reasonable judgment there exists judgment, either a conflict of interest between such Indemnitees Indemnitee and the such Indemnifying Party exists in respect of such Indemnitees shall have the right claim or there may be defenses available to employ separate counsel such Indemnitee which are different from or in addition to those available to such Indemnifying Party, and in that event (i) the reasonable fees and expenses of such separate counsel shall be paid by such Indemnifying Party (but it being understood, however, that the Indemnifying Party shall not be liable for the expenses of more than one separate counsel reasonably satisfactory with respect to the Indemnifying Partyany Third-party Claim (even if against multiple Indemnitees)) shall be paid by and (ii) each of such Indemnifying PartyParty and such Indemnitee shall have the right to conduct its own defense in respect of such claim. If any an Indemnifying Party elects not to assume responsibility for defend against a Third-Party Claim (which party Claim, or fails to notify an Indemnitee of its election may be made only as provided in this Section 3.03 within the event period of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3ten Business Days described above, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to defend, compromise or and settle such Third-Party party Claim; provided, however, that no such Indemnitee may compromise or settle any such Third-party Claim without the prior written notice to each such consent of the Indemnifying Party, which consent shall have not be withheld unreasonably. Notwithstanding the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemniteeforegoing, the Indemnifying Party shall be deemed to have elected option not, without the prior written consent of the Indemnitee, (ii).
(ci) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party party Claim unless (i) such settlement or compromise contemplates consent to the entry of any judgment which does not include as an unconditional term thereof the giving delivery by such the claimant or plaintiff to each the Indemnitee of a written release from all liability Liability in respect of such Third-Party Claim, and party Claim or (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement settle or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand party Claim in any manner that may adversely affect the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claimIndemnitee.
Appears in 1 contract
Sources: Master Separation Agreement (Eagle Geophysical Inc)
Procedure for Indemnification. Any party making a claim for indemnification hereunder (athe "INDEMNIFIED PARTY") If an Indemnitee shall receive notice or otherwise learn promptly notify the party whom indemnification is sought (the "INDEMNIFYING PARTY") of the assertion by a person claim in writing, describing in reasonable detail the claim and the amount thereof (including any governmental entity) who is not a party to this Agreement or to any of the Transaction Documents of any claim or of the commencement by any such Person of any action (a “Third-Party Claim”) with respect to which an Indemnifying Party may be obligated to provide indemnification pursuant to this Agreement, each such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after becoming aware of such Third-Party Claimextent known); provided, however, that the failure of any Indemnitee to give provide prompt notice as required by this Section 5.5 shall not relieve each the Indemnifying Party of its indemnification obligations under this Article V, hereunder except to the extent that each such the Indemnifying Party is actually prejudiced by such the failure to give such prompt notice. Such notice The Indemnifying Party shall describe respond to each such claim within thirty (30) days of receipt of such notice. No action shall be taken pursuant to the Third-provisions of this Agreement or otherwise by the Indemnified Party Claim in reasonable detail, and shall indicate (unless reasonably necessary to protect the amount (estimated if necessary) rights of the Indemnifiable Loss that has been Indemnified Party) until the later of (a) the expiration of the 30-day response period, or may be sustained by each such Indemnitee.
(b) An Indemnifying Party may elect thirty (30) days following the termination of the 30-day response period if a response, received within such 30-day response period by the Indemnified Party, requests an opportunity to defend or to seek to settle or compromise, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel reasonably acceptable to each Indemnitee, any Third-Party Claim, provided that cure the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled matter giving rise to indemnification hereunder (and, in respect such event, the amount of such Thirdclaim for indemnification shall be reduced to the extent so cured within such 30-Party Claimday cure period). Within 30 days of the receipt of notice from an Indemnitee in accordance with Section 5.5(a) (or sooner, if the nature of If such Third-Party Claim so requires)demand is based on a claim by a third party, the Indemnifying Party shall notify each Indemnitee of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim), and each Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each Indemnitee of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees and the Indemnifying Party such Indemnitees shall have the right to employ separate counsel and in that event assume the reasonable fees and expenses entire control of such separate counsel (but not more than one separate the defense thereof, including at its own expense, employment of counsel reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 or 5.3, as the case may be), each such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim without prior written notice to each such Indemnifying Indemnified Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement and assume all past and future responsibility for the claimand, including reimbursing each Indemnitee for prior expenditures in connection with therewith, the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Indemnified Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event such Indemnifying Party makes no response to such written notice from an Indemnitee, cooperate fully with the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall and make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party all pertinent information under its control; provided, that the Indemnified Party may participate in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free proceeding with counsel of any participation by such Indemnifying Party, its choice at each such Indemnitee’s sole its expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have the right to settle or resolve any such claim by a period third party; provided, that any such settlement or resolution contemplated by the Indemnifying Party that involves any action by the Indemnified Party other than the payment of 30 days after money which is paid in full by the receipt Indemnifying Party shall not be concluded without the prior written approval of the Indemnified Party, which approval shall not be unreasonably withheld, delayed or conditioned. If the Indemnifying Party fails timely to defend against such notice within which Proceeding, the Indemnified Party shall have the right to notify each applicable Indemnitee of do so, including, without limitation, the right to make any compromise or settlement thereof, and the Indemnified Party shall be entitled to recover the cost thereof from the Indemnifying Party’s response , including, without limitation, reasonable attorneys' fees, disbursements and amounts paid as the result of such Proceeding (but subject, in all cases, to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim applicable conditions and limits contained in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the PartiesArticle 7).
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 1 contract
Sources: Securities Purchase Agreement (Spheris Leasing LLC)
Procedure for Indemnification. (a) If an Indemnitee 7.3.4.1 A Parent Indemnified Party shall receive notice or otherwise learn of the assertion by give a person (including any governmental entity) who is not a party to this Agreement or to any of the Transaction Documents Claim Notice of any claim or for indemnification under this Article VII (a "Claim") to the Representative, on behalf of the commencement by any such Person indemnifying parties, reasonably promptly after the assertion against a Parent Indemnified Party of any action claim by a third party (a “Third-"Third Party Claim”") with or, if such Claim is not in respect of a Third Party Claim, reasonably promptly after the discovery of facts on which the Parent Indemnified Party intends to which an Indemnifying Party may be obligated to provide base a Claim for indemnification pursuant to this Agreement, each such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after becoming aware of such Third-Party ClaimArticle VII; provided, however, that the failure of any Indemnitee or delay to give notice as required by this Section 5.5 so notify the Representative shall not relieve each Indemnifying the indemnifying party of any obligation or liability that the indemnifying party may have to the Parent Indemnified Party of its obligations under this Article V, except to the extent that each the Representative demonstrates that the indemnifying parties' ability to defend or resolve such Indemnifying Party Claim is prejudiced by adversely affected thereby. Any such failure to give notice. Such notice Claim Notice shall describe the Third-Party facts and circumstances on which the asserted Claim in reasonable detail, for indemnification is based and shall indicate specify how such Parent Indemnified Party intends to recover such funds pursuant to this Agreement and the basis for the determination of the amount (estimated if necessary) of which the Indemnifiable Loss that has been or may be sustained by each such IndemniteeParent Indemnified Party intends to recover.
(b) An Indemnifying Party may elect to defend or to seek to settle or compromise7.3.4.2 If, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel reasonably acceptable to each Indemnitee, any Third-Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect of such Third-Party Claim. Within within 30 days of the receipt by the Representative of notice a Claim Notice, the Representative contests in writing to the Parent Indemnified Party that Losses identified in such Claim Notice constitute indemnifiable Claims (the "Representative Notice"), then the Parent Indemnified Party and the Representative, acting in good faith, shall attempt to reach agreement with respect to the contested portions of such Claims. Unless a Claim is contested within such 30-day period, the Parent Indemnified Party shall, subject to the other terms of this Article VII, be paid the amount of the Losses related to such Claim or the uncontested portion thereof. The Representative shall not object to any Claim unless (i) it believes in good faith that the Parent Indemnified Party is not entitled to be indemnified with respect to the Losses specified therein, or (ii) it lacks sufficient information to assess the validity or amount of the Claim. If the Representative objects to a Claim on the basis that it lacks sufficient information, it shall promptly request from an Indemnitee the Parent Indemnified Party any additional information reasonably necessary for it to assess such Claim and the Parent Indemnified Party shall, to the extent the Parent Indemnified Party reasonably can, provide additional information reasonably requested. Upon receipt of such additional information, the Representative shall review it as soon as reasonably practicable and notify the Parent Indemnified Party of any withdrawal or modification of the objection. If the Parent Indemnified Party and the Representative are unable to reach agreement with respect to any contested Claims within 45 days of the delivery of the Representative Notice, the matter shall be settled by binding arbitration in Salt Lake City, Utah as set forth below. All claims shall be settled in accordance with Section 5.5(a) the Commercial Arbitration Rules then in effect of the American Arbitration Association (or sooner, if the nature "AAA Rules"). The Representative and the Parent Indemnified Party shall each designate one arbitrator within 15 days after the termination of such Third45-Party Claim so requires), day period. The Representative and the Indemnifying Parent Indemnified Party shall notify each Indemnitee of its election whether cause such designated arbitrators mutually to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim), agree upon and each Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each Indemnitee of its election to assume responsibility for designate a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereofthird arbitrator; provided, however, that (i) failing such agreement within 70 days of delivery of the Representative Notice, the third arbitrator shall be appointed in accordance with the AAA Rules and (ii) if either the defendants in any such claim include both Representative or the Indemnifying Parent Indemnified Party fails to timely designate an arbitrator, the dispute shall be resolved by the one arbitrator timely designated. The fees and one expenses of the arbitrators shall be paid one-half by the Parent and one-half by the shareholders of Caroderm (from the Holdback amounts or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees otherwise). The Representative and the Indemnifying Parent Indemnified Party such Indemnitees shall cause the arbitrators to decide the matter to be arbitrated pursuant hereto within 30 days after the appointment of the last arbitrator. The final decision of the majority of the arbitrators shall be furnished to the Representative and the Parent Indemnified Party in writing and shall constitute the conclusive determination of the issue in question binding upon the Representative, the shareholders of Caroderm, and the Parent Indemnified Party, and shall not be contested by any of them. Such decision may be used in a court of law only for the purpose of seeking enforcement of the arbitrators' decision.
7.3.4.3 The indemnifying party will have the right to employ separate defend the Parent Indemnified Party against the Third Party Claim at the indemnifying party's sole expense with counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel its choice reasonably satisfactory to the Indemnifying Party) shall be paid by each such Indemnifying Party. If any Indemnifying Parent Indemnified Party elects not so long as the indemnifying party conducts the defense of the Third Party Claim actively and diligently; provided, however, that, notwithstanding the foregoing, Parent may elect to assume responsibility for a Third-the defense and handle any such Third Party Claim (which election may be made only if it determines in the event of a good faith dispute that the resolution of such Third Party Claim could result in a claim was inappropriately tendered under Section 5.2 material adverse impact on the business, operations, assets, liabilities (absolute, accrued, contingent or 5.3, as the case may beotherwise), each such Indemnitee may defend condition (financial or (subject to otherwise) or prospects of Parent; and provided further that the following sentence) seek to compromise or settle such Third-indemnifying person is also a person against whom the Third Party Claim without prior written notice to each such Indemnifying Party, which shall have is made and the option within fifteen days following the receipt of such notice (i) to reject the settlement Parent Indemnified Party determines in good faith that joint representation would be inappropriate). The Parent Indemnified Party may retain separate co-counsel and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation participate in the defense of the claim, in Third Party Claim which event each such Indemnifying Party shall have no further right to contest be at the amount or reasonableness Parent Indemnified Party's sole cost and expense so long as the indemnifying party conducts the defense of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve Third Party Claim actively and agree to pay the settlementdiligently. In the event such Indemnifying The Parent Indemnified Party makes no response to such written notice from an Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 will not consent to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless (i) such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to each Indemnitee of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free entry of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee judgment or enter into any settlement with respect to such Third-the Third Party Claim shall be equal to (i) without the costs prior written consent of the indemnifying party, and expenses of each such Indemnitee prior the indemnifying party will not consent to the date such Indemnifying Party notifies each such Indemnitee entry of such offer of any judgment or enter into any settlement or compromise (with respect to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and (B) the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Third Party Claim shall be asserted by without the prior written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee consent of the Indemnifying Party’s response to the claim. If each such Indemnifying Parent Indemnified Party does which consent shall not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Partiesunreasonably withheld.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 1 contract
Sources: Merger Agreement
Procedure for Indemnification. The procedure for indemnification shall be as follows:
(a) If an Indemnitee The Party seeking indemnification under this Article 9 (the “Claimant”) shall receive give notice or otherwise learn of to the assertion by a person Party from whom indemnification is sought (including any governmental entitythe “Indemnitor”) who is not a party to this Agreement or to any of the Transaction Documents of any claim or liability that might result in an indemnified Loss (an “Indemnified Claim”), specifying in reasonable detail (i) the factual basis for and circumstances surrounding the Indemnified Claim, together with supporting documentation; and (ii) the amount of the commencement potential Loss pursuant to the Indemnified Claim if then known. If the Indemnified Claim relates to a Proceeding filed by any such Person a third party against Claimant, notice shall be given by Claimant as soon as practical, but in all events within twenty (20) business days of any action the later of (a “Thirdi) the Claimant learning of the Proceeding, or (ii) the Claimant receiving written notice of the Proceeding. In all other circumstances, notice shall be given by Claimant as soon as practical, but in all events within twenty-Party Claim”five (25) with respect business days after Claimant becomes aware of the facts giving rise to which an Indemnifying Party may the potential Loss; provided, however, that should the Claimant fail to notify the Indemnitor in the time required above, the Indemnitor shall only be obligated to provide indemnification relieved of its obligations pursuant to this AgreementArticle 9 to the extent the Indemnitor is materially prejudiced by such delay or failure to timely give notice of an Indemnified Claim or potential Loss.
(b) The Claimant shall make available to Indemnitor and/or its authorized representatives the information relied upon by the Claimant to substantiate the Indemnified Claim or Loss and shall make available any information or documentation in Claimant’s possession, each custody or control that is or may be helpful in defending or responding to the Indemnified Claim or Loss.
(c) The Indemnitor shall have thirty (30) days after receipt of the indemnification notice referred to in sub-section (a) to notify the Claimant in writing that it elects to conduct and control the defense of any such Indemnitee shall give each such Indemnifying Party written notice thereof promptly after becoming aware of such Third-Party Indemnified Claim; provided, however, that such thirty (30) day period shall be reduced to such shorter period of time set forth in the failure of any Indemnitee to give applicable indemnification notice as required by this Section 5.5 shall not relieve each Indemnifying Party of its obligations under this Article V, except to if the extent that each such Indemnifying Party Indemnified Claim or Loss is prejudiced by such failure to give notice. Such notice shall describe the Thirdbased upon a third-Party Claim party claim requiring a response in reasonable detail, and shall indicate the amount fewer than thirty (estimated if necessary30) of the Indemnifiable Loss that has been or may be sustained by each such Indemniteedays.
(bd) An Indemnifying Party may elect If the Indemnitor does not advise the Claimant of its intent to defend or to seek to settle or compromise, at such Indemnifying Party’s own expense conduct and by such Indemnifying Party’s own counsel reasonably acceptable to each Indemnitee, any Third-Party Claim, provided that control the Indemnifying Party must confirm in writing that it agrees that each Indemnitee is entitled to indemnification hereunder in respect of such Third-Party Claim. Within 30 days defense of the receipt of notice from an Indemnitee in accordance with Section 5.5(a) (Indemnified Claim or sooner, if Proceeding within the nature of such Third-Party Claim so requires)time period specified above, the Indemnifying Party shall notify each Indemnitee of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify each Indemnitee of its election within 30 days after receipt of such notice from each Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim), and each Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to each Indemnitee of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to each such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by each such Indemnitee in connection with the defense thereof; provided, however, that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment there exists a conflict of interest between such Indemnitees and the Indemnifying Party such Indemnitees Claimant shall have the right to employ separate defend, contest, settle, or compromise such Indemnified Claim or Proceeding. If the Indemnitor properly advises the Claimant that it will conduct and control the Indemnification Claim or Proceeding, the Indemnitor shall have the right to undertake, conduct, defend, and control, through counsel of its own choosing and at its sole expense, the conduct, defense, and settlement of the Indemnified Claim or Proceeding, and the Claimant shall cooperate with the Indemnitor in that event connection therewith. Notwithstanding the reasonable foregoing or anything else herein to the contrary, (i) the Indemnitor shall not consent to the imposition of any injunction against the Claimant without the prior written consent of the Claimant, which consent shall not be unreasonably withheld; (ii) the Indemnitor shall permit the Claimant to participate in such conduct or settlement through counsel chosen by the Claimant, but the fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid borne by each the Claimant; (iii) upon a final determination of Proceeding, the Indemnitor shall promptly reimburse the Claimant for the full amount of any indemnified Loss or indemnified portion of any Loss resulting from the Indemnified Claim or Proceeding and all reasonable expenses related to such Indemnifying Party. If any Indemnifying Party elects not to assume responsibility indemnified Loss incurred by the Claimant, except (A) fees and expenses of counsel for a Third-Party Claim (which election may be made only the Claimant in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.2 Indemnitor has conducted or 5.3, as controlled the case may be), each such Indemnitee may defend or Proceeding and (subject to the following sentenceB) seek to compromise or settle such Third-Party Claim without prior written notice to each such Indemnifying Party, which shall have the option within fifteen days following the receipt of such notice (i) to reject the settlement any Loss not indemnifiable by Indemnitor; and assume all past and future responsibility for the claim, including reimbursing each Indemnitee for prior expenditures in connection with the claim, or (ii) to reject the settlement and continue to refrain from participation in the defense of the claim, in which event each such Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if each Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving each such Indemnifying Party’s right to contest each Indemnitee’s right to indemnity, or (iv) to approve and agree to pay no Indemnitor may, without the settlement. In prior written consent of the event such Indemnifying Party makes no response to such written notice from an IndemniteeClaimant, the Indemnifying Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend settle or to seek to compromise any Third-Party Claimcompromise, each Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, within the reasonable discretion of each such Indemnifying Party.
(d) Notwithstanding anything else in this Section 5.5 consent to the contraryentry of any judgment in connection with, an Indemnifying Party shall not settle or compromise any Third-Party Claim Proceeding with respect to the claim described in the indemnification notice unless (iA) such settlement or compromise contemplates as an unconditional term thereof involves only the giving by such claimant or plaintiff to each Indemnitee payment of a written release from all liability in respect of such Third-Party Claim, and (ii) such settlement does not provide for any non-monetary relief by any Indemnitee unless each such Indemnitee consents thereto. In the event any Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, each such Indemnitee may continue to contest such Third-Party Claim free of any participation by such Indemnifying Party, at each such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to each such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of each such Indemnitee prior to the date such Indemnifying Party notifies each such Indemnitee of such offer of settlement or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder), plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which each such Indemnitee declined to accept and money; (B) there is no finding or admission of liability, any violation of any Law or any violation of the actual out-of-pocket amount each such Indemnitee is obligated to pay subsequent to such date as a result rights of any Person by the Claimant; and (C) the Indemnitor obtains an unconditional release of each such Indemnitee’s continuing to pursue such Third-Party Claim.
(e) Any claim on account of an Indemnifiable Claimant from all Indemnified Claims or potential Loss which does not result from a Third-Party Claim shall be asserted by written notice given by an Indemnitee to each applicable Indemnifying Party. Each such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to notify each applicable Indemnitee arising out of the Indemnifying Party’s response to the claim. If each such Indemnifying Party does not so notify each such Indemnitee during such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If each such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, each such Indemnitee shall be free to pursue such remedies as may be available to such Party under applicable law or under this Agreement or any other agreement or arrangement between the Parties.
(f) In addition to any adjustments required pursuant to Section 5.4, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by each Indemnitee to each Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand described in the place of such Indemnitee as to indemnification notice and any events Indemnified Claim or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claimProceeding related thereto.
Appears in 1 contract
Sources: Asset Purchase Agreement (Nexstar Broadcasting Group Inc)