Procedures for Indemnification. (a) If a claim or demand is made against an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, by any Person who is not a party to this Agreement (or an Affiliate thereof) (a "Third Party Claim") as to which one or more parties (collectively, the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement, such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, that failure to give such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure. (b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party). (c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld). (d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. If the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11.
Appears in 2 contracts
Sources: Asset Purchase Agreement (General Motors Corp), Asset Purchase Agreement (General Motors Corp)
Procedures for Indemnification. (a) If a claim or demand is made against an IndemniteeThe party (the “Indemnified Party”) that may be entitled to indemnity hereunder shall give prompt notice to the party obligated to give indemnity hereunder (the “Indemnifying Party”) of the assertion of any claim, or the commencement of any suit, action or proceeding (including but not limited to environmental enforcement actions), or Indemnified Party’s intent to conduct any non-enforcement related Required Remedial Environmental Compliance Activity which would not involve formal proceedings, in respect of which indemnity may be sought hereunder. Any failure on the part of any Indemnified Party to give the notice described in this Section 8.4(a) shall relieve the Indemnifying Party of its obligations under this Article 8 only to the extent that such Indemnifying Party has been prejudiced by the lack of timely and adequate notice (except that the Indemnifying Party shall not be liable for any expenses incurred by the Indemnified Party during the period in which the Indemnified Party failed to give such notice). Thereafter, the Indemnified Party shall deliver to the Indemnifying Party, promptly (and in any event within 10 days thereof) after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to such claim, action, suit, proceeding or Required Remedial Environmental Compliance Activity.
(i) Except for non-enforcement related Required Remedial Environmental Compliance Activity, the Indemnifying Party shall have the obligation to assume the defense or settlement of any third-party claim, suit, action or proceeding (including enforcement related Required Remedial Environmental Compliance Activity) in respect of which indemnity may be sought hereunder, provided that (i) the Indemnified Party shall at all times have the right, at its option, to participate fully therein, and (ii) if the Indemnifying Party does not proceed diligently to defend the third-party claim, suit, action or proceeding within 10 days after receipt of notice of such third-party claim, suit, action or proceeding, the Indemnified Party shall have the right, but not the obligation, to undertake the defense of any such third-party claim, suit, action or proceeding.
(ii) With regard to non-enforcement related Required Remedial Environmental Compliance Activity, the Indemnifying Party shall have the obligation to assist the Indemnified Party by providing information regarding past noncompliance to delineate the necessary extent of the Required Remedial Environmental Compliance Activity and to indemnify the Indemnified Party for Reasonable Costs and Expenses incurred in performing the Required Remedial Environmental Compliance Activity as recommended by an Indemnitee environmental professional. Prior to performing any Activity, the Indemnified Party shall otherwise learn have the obligation to provide reasonable notice to the Indemnifying Party of an assertionthe voluntary Required Remedial Environmental Compliance Activity recommended by the environmental professional. At the request of the Indemnifying Party, by any Person who is not the Indemnified party will provide the Indemnifying Party a party reasonable opportunity to comment on the proposed Activity and direct the environmental professional recommending the Activity to consider these comments before finalizing its proposal. The Indemnifying Party has no right or opportunity pursuant to this Agreement to veto the environmental professional’s final proposal once their comments have been considered.
(c) The Indemnifying Party shall not be required to indemnify the Indemnified Party with respect to any amounts paid in settlement of any third-party suit, action, proceeding or an Affiliate thereof) (a "Third Party Claim") as to which one or more parties (collectively, investigation entered into without the "written consent of the Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement, such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, that failure to give if the Indemnified Party is the Buyer, such notification will not affect third-party suit, action, proceeding or investigation may be settled without the indemnification provided hereunder except to the extent consent of the Indemnifying Party shall have been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and on 10 days’ prior written notice to the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses if such third-party suit, action, proceeding or costs in respect thereof constitute Damages and compliance investigation is then unreasonably interfering with the other terms hereof)business or operations of Buyer and the settlement is commercially reasonable under the circumstances; and provided further, that if the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory gives 10 days’ prior written notice to the Indemnitee. Should the Indemnifying Indemnified Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during settlement offer which the Indemnifying Party has failed desires to assume accept and to pay all Losses with respect thereto (“Settlement Notice”) and the defense thereof Indemnified Party fails or if it does not expressly elect refuses to assume consent to such settlement within 10 days after delivery of the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply Settlement Notice to the Indemnitee copies of all correspondence Indemnified Party, and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate settlement otherwise complies with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, provisions of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consentthis Section 8.4, the Indemnifying Party shall not be liable for Losses arising from such third-party suit, action, proceeding or investigation in excess of the amount proposed in such settlement offer. Notwithstanding the foregoing, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and judgment or enter into any settlement without the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion consent of the Indemnitee could reasonably be expected to materially Indemnified Party, if such judgment or settlement imposes any obligation or liability upon the Indemnified Party other than the execution, delivery or approval thereof and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability customary releases of claims with respect to, to the subject matter thereof. This subparagraph (c) does not apply to Indemnified Party’s performance of non-enforcement related Required Remedial Environmental Compliance Activities or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld)’s indemnification of same.
(d) Any claim on account of Damages which does not involve a Third Party Claim The parties shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom cooperate in defending any such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreementthird-party suit, except to the extent that action, proceeding or investigation, and the Indemnifying Party shall have been actually prejudiced by such failurereasonable access to the books and records, and personnel in the possession or control of the Indemnified Party that are pertinent to the defense. If The Indemnified Party may join the Indemnifying Party does not dispute its liability in any suit, action, claim or proceeding brought by a third party, as to which any right of indemnity created by this Agreement would or might apply, for the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration purpose of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability enforcing any right of the Indemnifying indemnity granted to such Indemnified Party under pursuant to this Agreement. The Indemnifying Party shall pay the amount This subparagraph (d) does not apply to Indemnified Party’s performance of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (non-enforcement related Required Remedial Environmental Compliance Activities or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11’s indemnification of same.
Appears in 1 contract
Sources: Asset Purchase Agreement (Maxum Petroleum Holdings, Inc.)
Procedures for Indemnification. (a) If a claim or demand is made against an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, by any Person person, other than Capstone, who is not a party to this Distribution Agreement (or an Affiliate thereof) (a "Third Party Claim") as to which one or more parties (collectively, the "Indemnifying Party") may be obligated such Indemnitee is entitled to provide indemnification pursuant to this Distribution Agreement, such Indemnitee will shall notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly (and in any event within 20 business days) after becoming aware receipt by such Indemnitee of such written notice of the Third Party Claim; provided, however, that failure to give such notification will within such 20 business day period shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failurefailure (except that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice). Thereafter, the Indemnitee shall deliver to the Indemnifying Party, promptly (and in any event within 20 business days) after the Indemnitee's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitee relating to the Third Party Claim.
(b) If a Third Party Claim is made against an Indemnitee and Indemnitee, the Indemnifying Party unconditionally shall be entitled to participate in the defense thereof and, if it so chooses and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof)therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and Party; provided that such counsel is not reasonably satisfactory objected to by the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will shall not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. If the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11.as
Appears in 1 contract
Sources: Distribution Agreement (Beverly Enterprises Inc /De/)
Procedures for Indemnification. (a) If a claim or demand is made against any person who is entitled to indemnification hereunder (an "Indemnitee, or an Indemnitee shall otherwise learn of an assertion, ") by any Person person who is not a party party, or an Affiliate of a party, to this Agreement (or an Affiliate thereof) (a "Third Party Claim") as to which one or more parties (collectively, the "Indemnifying Party") may be obligated such Indemnitee is entitled to provide indemnification pursuant to this Agreement, such Indemnitee will shall notify the party obligated hereunder to indemnify such Indemnitee (the "Indemnifying Party Party") in writing, and in reasonable detail, of the Third Party Claim reasonably promptly (and in any event within 15 business days) after becoming aware receipt by such Indemnitee of such written notice of the Third Party Claim; provided, however, that failure to give such notification will shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure.
failure (bexcept that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice). There after, the 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 the Third Party Claim. If a Third Party Claim is made against an Indemnitee and Indem ▇▇▇▇▇, the Indemnifying Party unconditionally shall be entitled to partici ▇▇▇▇ in the defense thereof and, if it so chooses and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof)therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and Party; provided that such counsel is not reasonably satisfactory objected to by the IndemniteeIndemni tee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will shall not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, that if in any Indemnitee's reasonable judgment there exists or is reasonably likely to exist a conflict of interest exists that would make it inappropriate in respect the reasonable judgment of such claim, such the Indemnitee shall have for the right same counsel to employ separate counsel (which shall be reasonably satisfactory to represent both the Indemnitee and the Indemnifying Party) and one local counsel to represent such , then the Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such entitled to retain its own counsel, at the expense of the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claimsuch defense, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence)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 fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect (other than during the period prior to assume the defense thereof (including acknowledging its indemnification obligation time the Indemnitee shall have given notice of the Third Party Claim as aforesaidprovided above). If the Indemnifying Party assumes so elects to assume the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies all of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemniteeprosecution thereof. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee liability for a Third Party Claim, then in no event will the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such any Third Party Claim without the Indemnifying Party's prior written consent; provided, how ever, that the Indemnitee shall have the right to settle, compromise or discharge such Third Party Claim without the consent (which consent shall of the Indemnifying Party if the Indemnitee releases in writing the Indemnifying Party from its indemnification obligation hereunder with respect to such Third Party Claim and such settlement, compromise or discharge would not be unreasonably withheld).
(d) Any claim on account otherwise adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, the Indemnitee will agree to any settle ment, compromise or discharge of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to that the Indemnifying Party from whom may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim and releases the Indemnitee completely in connection with such Third Party Claim and that would not otherwise adversely affect the Indemnitee; provided, however, that all of the Indemnitees that are subject to the Third Party Claims that are to be settled, compromised or discharged may unanimously refuse to agree to any such settlement, compromise or dis charge if each Indemnitee agrees that the Indemnifying Party's indemnification is soughtobligation with respect to such Third Party Claim shall not exceed the amount that would be required to be paid by or on behalf of the Indemnifying Party in connection with such settlement, compromise or discharge. The failure by any Indemnitee so to notify Notwithstanding the foregoing, the Indemnifying Party shall not relieve be entitled to assume the Indemnifying defense of any Third Party Claim (and shall be liable for the fees and expenses of counsel incurred by the Indemnitee in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with its counsel, cannot be separated from any liability which it may have to related claim for money damages. If such Indemnitee under this Agreementequitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. If be entitled to assume the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability defense of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability portion relating to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11money damages.
Appears in 1 contract
Sources: Partnership Interest Transfer Agreement (Cablevision Systems Corp)
Procedures for Indemnification. (a) If Any Person making a claim or demand for indemnification under this ARTICLE VI is made against referred to herein as an Indemnitee“Indemnified Party”. The Person from whom indemnification is sought is referred to herein as the “Indemnifying Party”. Promptly after receiving notice of any Proceeding, investigation, demand, or an Indemnitee shall otherwise learn of an assertion, other claim against the Indemnified Party by any Person who is not a third party to this Agreement (or an Affiliate thereof) (a "Third “Third-Party Claim") as to which one or more parties (collectively”), the "Indemnified Party shall provide written notice of such claim (any such written notice, an “Indemnification Notice”) to: (i) Purchaser, if the Third-Party Claim arises under Section 6.2 and (ii) the Sellers’ Representative, if the Third-Party Claim arises under Section 6.3. Each such Indemnification Notice shall describe in reasonable detail the applicable Third-Party Claim, including the facts giving rise to such claim for indemnification hereunder, and the amount or method of computation of the amount of such claim (if known); provided, that the failure to so notify an Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement, such Indemnitee will notify Party shall not relieve the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, that failure to give such notification will not affect the indemnification provided its obligations hereunder except to the extent that the Indemnifying Party shall have been is actually prejudiced as a result of by such failure. The Indemnified Party shall also provide such other information with respect thereto as the Indemnifying Party may reasonably request.
(b) If a Third Any Indemnifying Party shall be entitled to participate in the defense of such Third-Party Claim is made against an Indemnitee at such Indemnifying Party’s expense, and the Indemnifying Party unconditionally and irrevocably acknowledges in writing at its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnifying Party will option shall be entitled to assume the defense thereof (at within 10 Business Days after receipt of the expense of Indemnification Notice if the Indemnifying Party acknowledges in writing the Indemnifying Party) with ’s obligation to indemnify the Indemnified Party against any Losses that may result from such Third-Party Claim and by appointing a reputable counsel selected by the Indemnifying Party and reasonably satisfactory acceptable to the Indemnitee. Should Indemnified Party to be the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee lead counsel in connection with such defense; provided, that the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which Indemnified Party shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee shall have the right entitled to participate in the defense thereof of such Third-Party Claim and to employ counselcounsel of its choice for such purpose; provided, at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for that the fees and expenses of such separate counsel employed shall be borne by the Indemnitee for any period during which the Indemnified Party and shall not be recoverable from such Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party)under this ARTICLE VI.
(c) If Upon assumption of the defense of any such Third-Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of the Third-Party Claim, unless the Indemnifying Party unconditionally and irrevocably acknowledges consents in writing its obligation to indemnify such payment. Notwithstanding anything to the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consentcontrary herein, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment)settle, and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability Liability with respect to, or settle, compromise or discharge, such Third any Third-Party Claim without the Indemnifying Party's prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned, or delayed), unless the relief (i) is not in respect of a Third-Party Claim for Taxes, (ii) consists solely of money damages (all of which the Indemnifying Party shall pay) and (iii) includes a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all Liability with respect thereto; provided, however, that if the Indemnified Party fails to consent to such settlement or compromise and such settlement or compromise does not include injunctive relief, the Liability of the Indemnifying Party with respect to such Third-Party Claim under this Agreement shall be limited to the amount that would have otherwise been payable had the Indemnifying Party entered into such settlement or compromise.
(d) Any claim on account of Damages which does not involve a Third In all cases, the Indemnified Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to provide its reasonable cooperation with the Indemnifying Party from whom such indemnification is soughtin defense of claims or litigation relating to Third-Party Claims, including by making employees, information, and documentation reasonably available. The failure by any Indemnitee so to If the Indemnifying Party shall not, within 10 Business Days of receiving the Indemnification Notice, notify the Indemnified Party that it shall assume the defense of any such Third-Party Claim, or fails to defend or withdraws from the defense of any such Third-Party Claim or the Indemnifying Party is the Selling Equityholders and the claim(s) relate to or arise in connection with any Purchaser Defensible Matter, the Indemnified Party may defend against such matter in a manner consistent with the above provisions regarding conduct of the defense by the Indemnified Party; provided, that the Indemnified Party may not settle any such matter without the written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned, or delayed). Any of following shall constitute a “Purchaser Defensible Matter”: (i) the claim for indemnification relates to or arises in connection with any criminal or quasi-criminal proceeding, action, indictment, allegation, or investigation, (ii) the Indemnified Party reasonably believes an adverse determination with respect to the Third-Party Claim would materially injure the Indemnified Party’s future business prospects; (iii) the claim seeks an injunction or other equitable relief against the Indemnified Party, or (iv) the estimated Loss is less than (and would not cause the aggregate of all Losses to exceed) the Basket Amount.
(e) The Indemnified Party shall provide written notice of any claim that is not a Third-Party Claim to: (i) Purchaser, if such claim arises under Section 6.2 and (ii) the Sellers’ Representative, if such claim arises under Section 6.3. Such claim shall describe in reasonable detail the facts giving rise to any claim for indemnification hereunder and the amount or method of computation of the amount of such claim (if known); provided, that the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, of its obligations hereunder except to the extent that (and only to the extent that) the Indemnifying Party is materially prejudiced by such failure. The Indemnified Party shall also provide such other information with respect thereto as the Indemnifying Party may reasonably request. In the event that the Indemnifying Party does not notify the Indemnified Party that it disputes such claim within 30 days from receipt of the claim notice, the Indemnifying Party will be deemed to have acknowledged liability for such claim and the Escrow Agent and/or the Selling Equityholders, as appropriate, shall promptly pay such claim. If the Indemnifying Party disputes the validity or amount of any such claim, the Indemnifying Party shall so notify the Indemnified Party in writing within 30 days after receipt of the claim notice specifying in reasonable detail the points of disagreement. If any dispute is not resolved within 30 days after the Indemnified Party receives a dispute notice, then either of such parties can initiate an action pursuant to Section 7.10.
(f) Subject to this ARTICLE VI, within 10 days after any final decision, judgment, or award shall have been rendered by a Governmental Authority with competent jurisdiction (and a resolution of any appeal therefrom and the expiration of the time in which to appeal therefrom), or a settlement shall have been consummated, or the Indemnified Party and the Indemnifying Party shall have been actually prejudiced by such failure. If the Indemnifying Party does not dispute its liability to the Indemnitee arrived at a mutually binding agreement, in each case, with respect to a claim hereunder (i) if the claim made in such notice by notice for indemnification was brought pursuant to Section 6.2, Purchaser shall pay or cause to be paid all sums due and owing to the Indemnitee prior Seller Indemnified Party in immediately available funds to an account specified by the Seller Indemnified Party and (ii) if the claim for indemnification was brought pursuant to Section 6.3, Purchaser and the Sellers’ Representative shall cause the Escrow Agent to pay to Purchaser (payable by wire transfer of immediately available U.S. funds in accordance with the written payment instructions furnished by Purchaser to the expiration of a 30-calendar-day period following Escrow Agent), from the Indemnifying Party's receipt of notice of such claimEscrow Amount, any sums due and owing in accordance with this ARTICLE VI, and if the sums due and owing to the Purchaser Indemnified Party exceed the remaining Escrow Amount, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay or cause to be paid all additional sums due and owing to the Purchaser Indemnified Party in immediately available funds to an account specified by the Purchaser Indemnified Party. Any of the Escrow Amount remaining, net of any of the amount of such liability any outstanding, unresolved claims of Losses brought pursuant to Section 6.3 (the amounts set forth, the “Reserve Amounts”), shall automatically transfer to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on Selling Equityholders and such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party funds shall be released and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given distributed to the Indemnifying PartySelling Equityholders, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11the Selling Equityholders’ respective Pro Rata Portions, as follows: (A) one-half on January 2, 2025 and (B) the remaining balance on July 1, 2025. The Reserve Amounts shall be disbursed by the Escrow Agent, promptly after the unresolved indemnification claims to which they relate are finally resolved in accordance with this ARTICLE VI as confirmed by a joint written direction of the Sellers’ Representative and Purchaser or a final, non-appealable judgment of a court of competent jurisdiction.
Appears in 1 contract
Procedures for Indemnification. The procedures for ------------------------------ indemnification shall be as follows:
(a) If a claim or demand is made against an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, by any Person who is not a The party to this Agreement claiming the indemnification (or an Affiliate thereof) (a the "Third Party ClaimIndemnified ----------- Party") as shall promptly give notice to which one or more parties the party from whom the indemnification is ----- claimed (collectively, the "Indemnifying Party") may of any claim, whether between the parties or ------------------ brought by a third party against the Indemnified Party, specifying (i) the factual basis for such claim, and (ii) the amount of the claim. If the claim relates to an action, suit, or proceeding filed by a third party against the Indemnified Party such notice shall be obligated given by the Indemnified Party to provide indemnification pursuant to this Agreement, such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly within five (5) days after becoming aware written notice of such Third Party Claim; providedaction, howeversuit, that failure to give such notification will not affect the indemnification provided hereunder except or proceeding shall have been given to the extent Indemnified Party.
(b) Following receipt of notice from the Indemnified Party of a claim, the Indemnifying Party shall have been actually prejudiced thirty (30) days in which to make such investigation of the claim as a result the Indemnifying Party shall deem necessary or desirable. For the purposes of such failure.
(binvestigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If a Third the Indemnified Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and irrevocably acknowledges in writing its obligation amount of such claim, or if the Indemnifying Party does not respond to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof)such notice, the Indemnifying Party will be shall immediately pay to the Indemnified Party the full amount of the claim. If the Indemnified Party and the Indemnifying Party do not agree within said period (or within any agreed-upon extension thereof), the Indemnified Party may seek appropriate legal remedy.
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of the defense thereof (at of such claim, and the expense of Indemnified Party shall cooperate fully with the Indemnifying Party) with counsel selected , subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Partycooperate. If the Indemnifying Party assumes elects to assume control of the defense of any Third Party Claimthird-party claim, the Indemnitee Indemnified Party shall have the right to participate in the defense thereof and to employ counsel, of such claim at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve If a Third Party Claim shall be asserted claim, whether between the parties or by reasonably prompt written notice given by a third party, requires immediate action, the Indemnitee parties will make all reasonable efforts to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not dispute its liability elect to assume control or otherwise participate in the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration defense of a 30any third-calendar-day period following the Indemnifying Party's receipt of notice of such party claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay be bound by the amount of such liability to results obtained in good faith by the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Indemnified Party has timely disputed its liability with respect to such claim, as .
(f) The indemnification rights provided above, the Indemnifying Party in Sections 13.2 and the Indemnitee ------------- 13.3 hereof shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given extend to the Indemnifying partners, shareholders, directors, officers, ---- members, partners, agents, employees, and representatives of the Indemnified Party, although for the Indemnifying Party purpose of the procedures set forth in this Section ------- 13.4, any indemnification claims by such parties shall be made by and through ---- the Indemnitee will resolve such dispute in accordance with Section 14.11Indemnified Party.
Appears in 1 contract
Sources: Asset Purchase Agreement (American Tower Systems Corp)
Procedures for Indemnification. (a) If a claim or demand is made against an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, by any Person who is not a party Indemnified Party intends to this Agreement (or an Affiliate thereof) (a "Third Party Claim") as to which one or more parties (collectively, the "Indemnifying Party") may be obligated to provide seek indemnification pursuant to this AgreementArticle IV, such Indemnitee Indemnified Party shall promptly provide written notice to the party from whom indemnification is being sought (the “Indemnifying Party”), in writing in accordance with Section 7.1 of such claim describing such claim in reasonable detail including the sections of this Agreement which form the basis for such claim, copies of all material written evidence thereof and the estimated amount of the Indemnifiable Losses that have been or may be sustained by the Indemnified Party; provided, that the failure to provide such notice shall not affect the obligations of the Indemnifying Party unless it is actually materially prejudiced thereby. In particular, in case of any investigation or audit for which indemnification of an Indemnified Party under this Article IV is reasonably likely, such Indemnified Party shall inform the Indemnifying Party at the commencement of such investigation or audit, to the extent practical, so that the Indemnifying Party may participate therein. In the event that such claim involves a claim by a third party against the Indemnified Party, the Indemnifying Party shall have 20 days after receipt of such notice to decide whether it will notify undertake, conduct and control, through counsel of its own choosing and at its own expense, the settlement or defense thereof, and if it so decides, the Indemnified Party shall cooperate with the Indemnifying Party in writing, and in reasonable detail, of connection with the Third Party Claim reasonably promptly after becoming aware settlement or defense of such Third Party Claimclaim; provided, however, that failure to give such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Indemnified Party shall have been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee shall have the right to may participate in the such settlement or defense thereof and to employ counselthrough counsel chosen by it; provided, at its own expense (except as otherwise provided in the preceding sentence)further, separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for that the fees and expenses of such counsel employed shall be borne by the Indemnitee Indemnified Party; provided, further, that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the reasonable judgment of the Indemnified Party for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain one law firm at the Indemnifying Party’s expense. Notwithstanding anything in this Section 4.4 to the contrary, the Indemnifying Party may, without the consent of the Indemnified Party, settle or compromise any period during action or consent to the entry of any judgment which is solely for money damages, which includes as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnified Party of a duly executed written release of the Indemnified Party from all liability in respect of such action, which release shall be reasonably satisfactory in form and substance to counsel for the Indemnified Party, and which does not involve an admission of guilt or liability. So long as the Indemnifying Party has failed agreed to assume undertake, conduct and control the defense thereof settlement or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claimsuch claim and is contesting any such claim in good faith, the Indemnifying Indemnified Party will promptly supply to shall not pay or settle any such claim without the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, written consent of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld)withheld or delayed.
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. If the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11.
Appears in 1 contract
Procedures for Indemnification. (a) If In order for a member of the Buyer Group or Seller Group, as the case may be, to be entitled to indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand is made against an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, by any Person who is not a third-party to this Agreement (or an Affiliate thereof) (a "Third Party Claim") as to which one or more parties (collectively, the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement), such Indemnitee will indemnified party must notify the Indemnifying Party indemnifying parties in writing, and in reasonable detail, of the Third Party Claim reasonably promptly within ten (10) days after becoming aware receipt by such indemnified party of such written notice of the Third Party Claim; provided, however, that the failure to give such notification will provide timely and proper notice shall not affect limit the indemnification provided hereunder except that the indemnification hereunder shall be reduced by the financial effect, if any, of such failure (except that an indemnifying party shall not be liable for any expenses incurred during the period following such 10-day period in which the indemnified party failed to give such notice). Thereafter, (i) the indemnified party shall promptly deliver to the extent indemnifying parties (A) copies of all notices and documents (including court papers) received by the Indemnifying indemnified party relating to the Third Party Claim and (B) all available information and documentation necessary to support and verify the claim asserted, and (ii) the indemnifying parties shall have been actually prejudiced as a result be given reasonable access to the books and records in the possession or control of the indemnified party or any of its Affiliates which any indemnifying party reasonably determines to be related to, or reasonably necessary in the defense of, such failureThird Party Claim.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof)indemnified party, the Indemnifying Party indemnifying parties will be entitled entitled, at their own cost and expense, to participate in the defense thereof and, if they so choose, to assume the defense thereof (at the expense of the Indemnifying Party) with counsel reasonably selected by the Indemnifying Party and reasonably satisfactory to the Indemniteeindemnifying parties. Should the Indemnifying Party so elect to assume the defense of a Third Party ClaimIf an indemnifying party assumes such defense, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee indemnified party shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence)cost and expense, separate from the counsel employed by the Indemnifying Party. The Indemnifying Party indemnifying parties, it being understood that the indemnifying parties shall control such defense and will not be liable to the indemnified party for any legal expenses incurred by the indemnified party subsequent to the assumption by an indemnifying party of the defense; provided, however, that the indemnifying parties shall be liable for the reasonable fees of separate counsel for the indemnified party (which counsel shall be reasonably acceptable to the indemnifying parties) if, in the reasonable opinion of outside counsel for the indemnified party (which counsel and opinion shall be reasonably acceptable to the indemnifying parties), representation of the indemnifying parties and the indemnified party in such matter by one counsel would create a conflict of interest such that representation of the indemnifying parties and the indemnified party in such matter by separate counsel is required under applicable ethical rules governing legal representation. In any event, an indemnifying party shall not be liable under this Agreement for the fees and expenses of more than one firm of counsel employed by (and representing all) the Indemnitee for any period during which the Indemnifying Party has failed indemnified parties. Whether or not an indemnifying party chooses to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees parties hereto shall, and shall reasonably cause their respective Affiliates to, cooperate with the Indemnifying Party in the defense or prosecution thereof (such cooperation and to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. If the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate retain and furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested by a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute party hereto in accordance with Section 14.11.connection
Appears in 1 contract
Procedures for Indemnification. (ai) If In the event of a claim being brought against a Coach Indemnified Party or demand is made against a Seller Indemnified Party (as the case may be, an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, by any Person who is not a party to this Agreement (or an Affiliate thereof) (a "Third Party ClaimIndemnified Party") as with respect to which one the Indemnified Party intends to make a claim for indemnification against the Seller or more parties the Coach Parties, the Company or TK Investor No.1 as the case may be (collectively, the "Indemnifying Party"), the Indemnified Party shall promptly (but in no event more than 30 days after learning of such claim) may be obligated give notice to provide indemnification pursuant to this Agreement, such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, of the Third claim and permit the Indemnifying Party Claim reasonably promptly after becoming aware to assume control of such Third Party Claimthe claim; provided, however, provided that any failure to give such notification will provide the foregoing notice on a timely basis shall not affect relieve the indemnification provided Indemnifying Party of its obligations hereunder except to the extent the Indemnifying Party shall have been actually that it is prejudiced as a result of such failureor otherwise damaged thereby.
(bii) If a Third Party Claim is made against an Indemnitee and the The Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate undertake, conduct and control, through counsel (which shall be reasonably satisfactory acceptable to the Indemnified Party, and at the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim's sole expense, the Indemnitee shall have conduct and settlement of such claim, and the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Indemnified Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in connection therewith, provided that the defense thereof Indemnifying Party will not consent to the entry of any judgment or enter into any settlement without the prior written consent of the Indemnified Party (such cooperation not to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Partywithheld unreasonably).
(ciii) If the The Indemnifying Party unconditionally shall permit the Indemnified Party and irrevocably acknowledges in writing its obligation counsel chosen by the Indemnified Party and reasonably acceptable to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay monitor such conduct or settlement and shall provide the full amount of Damages in connection Indemnified Party and such counsel with such Third information regarding such claim, proceeding or suit as either of them may reasonably request, but the fees and expenses of such counsel shall be borne by the Indemnified Party Claim and unconditionally and irrevocably releases the Indemnitee unless (and the other members of the Buyer Group or the Seller Group, as the case may bei) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse Indemnified Party shall have mutually agreed to agree the retention of such counsel, or (ii) the named parties to any such settlementclaim, compromise proceeding or discharge thatsuit include the Indemnified Party and the Indemnifying Party, and in the reasonable opinion of counsel to the Indemnitee could reasonably Indemnified Party representation of both Parties by the same counsel would be expected inappropriate due to materially actual or likely conflicts of interest between them, in either of which case the reasonable fees and adversely affect the Indemnitee. If disbursements of counsel for such Indemnified Party shall be reimbursed by the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Indemnified Party Claim, if the Indemnitee shall not (unless required by law) admit any liability with respect toIndemnifying Party is ultimately held liable, or settle, compromise or discharge, if the Indemnifying Party is able to recover such Third fees and disbursements where the Indemnified Party Claim is not so able; and
(iv) In no event shall the Indemnifying Party without the Indemnifying Party's prior written consent (which of the Indemnified Party, settle or comprise any claim or consent shall not be unreasonably withheld).
(d) Any claim on account to the entry of Damages which any judgment that does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given include as an unconditional term thereof the giving by the Indemnitee claimant or the plaintiff to the Indemnifying Indemnified Party a release from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any all liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. If the Indemnifying Party does not dispute its liability to the Indemnitee with in respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11.
Appears in 1 contract
Sources: Stock Purchase Agreement (Coach Inc)
Procedures for Indemnification. (a) If Any Person making a claim for indemnification under this ARTICLE VI is referred to herein as an “Indemnified Party”. The Person from whom indemnification is sought is referred to herein as the “Indemnifying Party”. Promptly after receiving notice of any Proceeding, investigation, demand or demand is made other claim against an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, the Indemnified Party by any Person who is not a third party to this Agreement (or an Affiliate thereof) (a "Third “Third-Party Claim") as to which one or more parties (collectively”), the "Indemnified Party shall provide written notice of such claim (any such written notice, an “Indemnification Notice”) to: (i) the Parent subject to the indemnification claim, if the Third-Party Claim arises under Section 6.2 and (ii) the Shareholder, if the Third-Party Claim arises under Section 6.3. Each such Indemnification Notice shall describe in reasonable detail the applicable Third-Party Claim, including the facts giving rise to such claim for indemnification hereunder, the amount or method of computation of the amount of such claim (if known); provided, that the failure to so notify an Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement, such Indemnitee will notify Party shall not relieve the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, that failure to give such notification will not affect the indemnification provided its obligations hereunder except to the extent that the Indemnifying Party shall have been is actually prejudiced as a result of by such failure. The Indemnified Party shall also provide such other information with respect thereto as the Indemnifying Party may reasonably request.
(b) If a Third Any Indemnifying Party shall be entitled to participate in the defense of such Third-Party Claim is made against an Indemnitee at such Indemnifying Party’s expense, and the Indemnifying Party unconditionally and irrevocably acknowledges in writing at its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnifying Party will option shall be entitled to assume the defense thereof within ten (at 10) Business Days after receipt of the expense of Indemnification Notice if the Indemnifying Party acknowledges in writing the Indemnifying Party) with ’s obligation to indemnify the Indemnified Party against any Losses that may result from such Third-Party Claim and by appointing a reputable counsel selected by the Indemnifying Party and reasonably satisfactory acceptable to the Indemnitee. Should Indemnified Party to be the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee lead counsel in connection with such defense; provided, that the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which Indemnified Party shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee shall have the right entitled to participate in the defense thereof of such Third-Party Claim and to employ counselcounsel of its choice for such purpose; provided, at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for that the fees and expenses of such separate counsel employed shall be borne by the Indemnitee for any period during which the Indemnified Party and shall not be recoverable from such Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party)under this ARTICLE VII.
(c) If Upon assumption of the defense of any such Third-Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of the Third-Party Claim, unless the Indemnifying Party unconditionally and irrevocably acknowledges consents in writing its obligation to indemnify such payment. Notwithstanding anything to the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consentcontrary herein, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment)settle, and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability Liability with respect to, or settle, compromise or discharge, such Third any Third-Party Claim without the Indemnifying Party's prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed), unless the relief (i) is not in respect of a Third-Party Claim for Taxes, (ii) consists solely of money damages (all of which the Indemnifying Party shall pay) and (iii) includes a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all Liability with respect thereto.
(d) Any claim on account of Damages which does not involve a Third In all cases, the Indemnified Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to provide its reasonable cooperation with the Indemnifying Party from whom such indemnification is soughtin defense of claims or litigation relating to Third-Party Claims, including by making employees, information and documentation reasonably available. The failure by any Indemnitee so to If the Indemnifying Party shall not, within ten (10) Business Days of receiving the Indemnification Notice, notify the Indemnified Party that it shall assume the defense of any such Third-Party Claim, or fails to defend or withdraws from the defense of any such Third-Party Claim or the Indemnifying Party is the Shareholder and the claim(s) relate to or arise in connection with any Parent Defensible Matter, the Indemnified Party may defend against such matter in a manner consistent with the above provisions regarding conduct of the defense by the Indemnified Party; provided, that the Indemnified Party may not settle any such matter without the written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed). Any of following shall constitute a “Parent Defensible Matter”: (i) the claim for indemnification relates to or arises in connection with any criminal or quasi-criminal proceeding, action, indictment, allegation or investigation, (ii) the Indemnified Party reasonably believes an adverse determination with respect to the Third-Party Claim would materially injure the Indemnified Party’s future business prospects; or (iii) the claim seeks an injunction or other equitable relief against the Indemnified Party.
(e) The Indemnified Party shall provide written notice of claim that is not a Third-Party Claim to: (i) the Parent, if such claim arises under Section 6.2 and (ii) the Shareholder, if such claim arises under Section 6.3. Such claim shall describe in reasonable detail the facts giving rise to any claim for indemnification hereunder, the amount or method of computation of the amount of such claim (if known); provided, that the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, of its obligations hereunder except to the extent that (and only to the extent that) the Indemnifying Party is materially prejudiced by such failure. The Indemnified Party shall also provide such other information with respect thereto as the Indemnifying Party may reasonably request. If any dispute is not resolved within thirty (30) days after the Indemnified Party receives a dispute notice, then either of such parties can initiate an action pursuant to Section 7.10.
(f) Subject to this ARTICLE VI, within ten (10) days after any final decision, judgment or award shall have been rendered by a Governmental Authority with competent jurisdiction (and a resolution of any appeal therefrom and the expiration of the time in which to appeal therefrom), or a settlement shall have been consummated, or the Indemnified Party and the Indemnifying Party shall have been actually prejudiced by such failure. If the Indemnifying Party does not dispute its liability to the Indemnitee arrived at a mutually binding agreement, in each case, with respect to a claim hereunder (i) if the claim made in such notice by notice for indemnification was brought pursuant to Section 6.2, the Parent shall pay or cause to be paid all sums due and owing to the Indemnitee prior Shareholder Indemnified Party in immediately available funds to an account specified by the Shareholder Indemnified Party and (ii) if the claim for indemnification was brought pursuant to Section 6.3, the Parent and the Shareholder shall cause the Escrow Agent to pay to the expiration Parent (payable by wire transfer of a 30-calendar-day period following immediately available U.S. funds in accordance with the Indemnifying Party's receipt of notice of such claimwritten payment instructions furnished by the Parent to the Escrow Agent), from the Escrow Amount, any sums due and owing in accordance with this ARTICLE VI, and if the sums due and owing to the Parent Indemnified Party exceed the remaining Escrow Amount, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay or cause to be paid all additional sums due and owing to the Parent Indemnified Party in immediately available funds to an account specified by the Parent Indemnified Party. Any of the Escrow Amount remaining, net of any of the amount of such liability any outstanding, unresolved claims of Losses brought pursuant to Section 6.3 (the amounts set forth, the “Reserve Amounts”), shall automatically transfer to the Indemnitee on demand or, in Shareholder and such funds shall be released and distributed to the case of any notice in which Shareholder after the amount of date that is eighteen (18) months following the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determinedClosing Date. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee The Reserve Amounts shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations be disbursed by the 90th day Escrow Agent, promptly after notice of such claim was given the unresolved indemnification claims to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute which they relate are finally resolved in accordance with Section 14.11this ARTICLE VI as confirmed by a joint written direction of the Shareholder and the Parent or a final, non-appealable judgment of a court of competent jurisdiction.
Appears in 1 contract
Procedures for Indemnification. (a) If Any Person making a claim for indemnification under Section 9.1, Section 9.2 or Section 9.3 (an “Indemnified Party”) shall notify the party against whom indemnification is sought (an “Indemnifying Party”) of the claim in writing promptly after receiving notice of any action, lawsuit, proceeding, investigation, demand is made or other claim against an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, the Indemnified Party by any Person who is not a third party to this Agreement (or an Affiliate thereof) (a "“Third Party Claim") as to which one or more parties (collectively, the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement, such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, that failure to give such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof”), describing the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to amount thereof (if known and quantifiable) and the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee basis thereof in connection with the defense thereofreasonable detail; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have that the right failure to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the an Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, of its obligations hereunder except to the extent that (and only to the extent that) such failure shall have caused the indemnifiable Losses to be greater than such Losses would have been had the Indemnified Party given the Indemnifying Party prompt notice hereunder. Except as otherwise provided in Section 9.7, any Indemnifying Party shall be entitled to participate in the defense of such Third Party Claim at such Indemnifying Party’s expense, and at its option shall be entitled to assume the defense thereof by appointing a reputable counsel reasonably acceptable to the Indemnified Party to be the lead counsel in connection with such defense; provided that the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ counsel of its choice for such purpose (provided that the fees and expenses of such separate counsel shall be borne by the Indemnified Party and shall not be recoverable from such Indemnifying Party under this ARTICLE IX). Notwithstanding the foregoing, if the Indemnified Party shall have determined in good faith and upon advice of counsel that (a) an actual or likely conflict of interest makes representation of the Indemnifying Party and the Indemnified Party by the same counsel inappropriate or (b) the defendants in, or targets of, any such action or proceeding include both the Indemnified Party and an Indemnifying Party, and the Indemnified Party shall have reasonably concluded that there may be legal defenses available to it or to other Indemnified Parties which are different from or additional to those available to the Indemnifying Party (in which case the Indemnifying Party shall not have been actually prejudiced the right to direct the defense of such action or proceeding on behalf of the Indemnified Party), then, in each case, the Indemnified Party may, upon notice to the Indemnifying Party, engage separate counsel, and the reasonable fees and expenses of such separate counsel shall be borne by the Indemnifying Party to the extent the Third Party Claim is indemnifiable hereunder (but only to the extent such separate counsel agrees to comply with any written guidelines established by the Indemnifying Party that are applicable to substantially all outside counsel retained by such failureIndemnifying Party, which guidelines shall be provided to the Indemnified Party promptly upon the Indemnifying Party’s receipt of notice that the Indemnified Party intends to engage separate counsel due to an actual or likely conflict of interest). Upon assumption of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of the Third Party Claim, unless the Indemnifying Party consents in writing to such payment or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such Liability. Notwithstanding anything to the contrary herein, the Indemnifying Party shall not compromise or settle, or admit any Liability with respect to, any Third Party Claim without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed), unless the relief consists solely of (i) money damages (all of which the Indemnifying Party shall pay) and (ii) includes a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all Liability with respect thereto. In all cases with respect to Third Party Claims, the parties shall provide reasonable cooperation to each other in defense of such Third Party Claims, including by making employees, information and documentation reasonably available (including for purposes of fact finding, consultation, interviews, depositions and, if required, as witnesses) and providing such information, testimony and access to their books and records, during normal business hours and upon reasonable notice, in each case as shall be reasonably necessary in connection with the contest or defense. If the Indemnifying Party does shall not dispute its liability reasonably promptly assume the defense of any such Third Party Claim, or fails to prosecute or withdraws from the Indemnitee defense of any such Third Party Claim, the Indemnified Party may defend against such matter, at the Indemnifying Party’s expense, in a manner consistent with the above provisions regarding conduct of the defense by the Indemnified Party; provided that the Indemnified Party may not settle any such matter without the written consent of the Indemnifying Party (which consent shall not be unreasonably withheld or delayed).
(b) The Indemnified Party shall notify the Indemnifying Party with respect to a Covered Claim even though the amount thereof plus the amount of other Covered Claims previously notified by the Indemnified Party in the aggregate is less than the Deductible.
(c) In the event that any party or any of its Affiliates alleges that it is entitled to indemnification hereunder, and that its claim made in is covered under more than one provision of this ARTICLE IX, such notice party or Affiliates shall be entitled to elect the provision or provisions under which it may bring a claim for indemnification.
(d) A claim for indemnification for any matter not involving a Third Party Claim may be asserted by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) party from whom indemnification is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11sought.
Appears in 1 contract
Procedures for Indemnification. (a) If As used herein, an “Indemnified Party” means a claim party seeking indemnification pursuant to Section 9.02 or demand is made against an IndemniteeSection 9.03, or an Indemnitee shall otherwise learn of an assertion, by any Person and the term “Indemnifying Party” means the party who is not a party to this Agreement (or an Affiliate thereof) (a "Third Party Claim") as to which one or more parties (collectively, the "Indemnifying Party") may be obligated to provide indemnification pursuant under Section 9.02 or Section 9.03. The Indemnified Party agrees to give the Indemnifying Party prompt written notice of any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect of a third party (a “Third-Party Claim”) of which it has knowledge, for which such Indemnifying Party is entitled to indemnification under this AgreementARTICLE IX; provided, such Indemnitee will that failure to so notify the Indemnifying Party in writing, of any such claim shall discharge the Indemnifying Party of its liabilities and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, that failure to give such notification will not affect the indemnification provided obligations hereunder except only if and to the extent that the Indemnifying Party shall have been actually is prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and thereby. In the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense case of a Third Third-Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate direct, through counsel (which shall be reasonably satisfactory to of its own choosing, the Indemnifying Party) and one local counsel to represent defense or settlement of any such Indemnitee and Third-Party Claim at its own expense. In such case the Indemnified Party may participate in that event such defense, but in such case the reasonable fees and expenses of each such counsel shall the Indemnified Party will be paid by such Indemnifying the Indemnified Party. If The Indemnified Party will promptly provide the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply with access to the Indemnitee copies of all correspondence Indemnified Party’s records and documents personnel relating to or in connection with any such Third Third-Party Claim during normal business hours and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably will otherwise cooperate with the Indemnifying Party in the defense thereof (or settlement of such cooperation to be at Third-Party Claim, and the expenseIndemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, including reasonable legal fees personnel and expenses, cooperation. Upon assumption of the defense of any such Third-Party Claim by the Indemnifying Party).
(c) If , the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third-Party Claim, unless the Indemnifying Party unconditionally and irrevocably acknowledges consents in writing its obligation to indemnify such payment (which consent will not be unreasonably withheld) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnitee Indemnified Party is entered against the Indemnified Party for a Third such liability. No such Third-Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which may be settled by the Indemnifying Party may recommend and which by its terms obligates without the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members written consent of the Buyer Group or the Seller GroupIndemnified Party, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall which consent will not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemniteeunreasonably withheld. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation fails to indemnify defend or fails to prosecute or withdraws from such defense, then the Indemnitee for a Third Indemnified Party Claimwill have the right to undertake the defense or settlement thereof, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without at the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account ’s expense. If the Indemnified Party assumes the defense of Damages which does not involve a Third any such Third-Party Claim shall be asserted by reasonably pursuant to this Section 9.04 and proposes to settle such Third-Party Claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice given by the Indemnitee to thereof and the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so will have the right to notify participate in the Indemnifying Party shall not relieve settlement or assume or reassume the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. If the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice defense of such claim, the claim shall be conclusively deemed a liability of the Indemnifying Third-Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11Claim.
Appears in 1 contract
Sources: Asset Purchase Agreement (Ember Therapeutics, Inc. - Ny)
Procedures for Indemnification. (a) If Promptly after receipt by a claim Tejas Indemnified Party or demand is made against an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, by any Person who is not a party to this Agreement Company Indemnified Party (or an Affiliate thereof) (a "Third Party Claim") as to which one or more parties (collectivelysuch party, the "Indemnifying PartyINDEMNIFIED PARTY") may be obligated of written notice of the assertion or the commencement of any proceeding by a third-party with respect to provide any matter referred to in Sections 8.02 (other than excepted matters) or 8.03, as applicable, the Indemnified Party shall give written notice thereof to the party(ies) responsible for indemnification pursuant to this AgreementSections 8.02 or 8.03 hereof (the "INDEMNIFYING PARTY"), such Indemnitee will notify and thereafter shall keep the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claiminformed with respect thereto; provided, however, that failure of the Indemnified Party to give such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced notice as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party herein shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreementof their obligations hereunder, except to the extent that the Indemnifying Party are prejudiced thereby. A claim for indemnification for any matter not involving a third-party proceeding may be asserted by notice to the Indemnifying Party and shall be paid promptly after such notice.
(b) If the facts pertaining to a Loss arise out of the claim of any third party, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Indemnifying Party may assume the defense or the prosecution thereof by prompt written notice to the Indemnified Party, including the employment of counsel or accountants, at its sole cost and expense. In connection therewith, the Indemnifying Party shall acknowledge that such claim is the proper subject of indemnification under Section 8.02 or 8.02, as applicable. The Indemnified Party shall have been actually prejudiced the right to employ counsel separate from counsel employed by the Indemnifying Party in any such failureaction and to participate therein, but the fees and expense of such counsel employed by the Indemnified Party shall be at its sole cost and expense. If Neither the Indemnifying Party nor the Indemnified Party shall be liable for any settlement of any such claim effected without their respective prior written consent, which shall not be unreasonably withheld; PROVIDED that if the Indemnifying Party does not dispute its liability to assume the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration defense or prosecution of a claim as provided above without thirty (30-calendar-day period following ) days after notice thereof from the Indemnified Party, the Indemnified Party may settle such claim without the Indemnifying Party's receipt of notice of consent. Whether or not the Indemnifying Party chooses to so defend or prosecute such claim, all the claim parties hereto shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, cooperate in the case of any notice in which the amount of the claim (defense or any portion thereof) is estimatedprosecution thereof and shall furnish such records, on information and testimony, and attend such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claimconferences, discovery proceedings, hearings, trails and appeals, as provided above, the Indemnifying Party and the Indemnitee shall proceed may be reasonably requested in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11connection therewith.
Appears in 1 contract
Sources: Purchase Agreement (Barr Wayne Jr)
Procedures for Indemnification. (a) If In the case of a claim or demand is made liability asserted in writing by a third party against an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, by any Person who is not a party Indemnified Party which would give rise to this Agreement (or an Affiliate thereof) indemnification hereunder (a "“Third Party Claim") as to which one or more parties (collectively”), the "Indemnifying Party") may be obligated Indemnified Party shall deliver written notice to provide indemnification pursuant to this Agreement, such Indemnitee will notify the applicable Indemnifying Party in writingof such Third Party Claim as soon as possible, and in reasonable detailno event later than fifteen (15) Business Days, following receipt of such written assertion of a claim or liability. The failure by any Indemnified Party to give timely notice referred to in the preceding sentence shall not impair the Indemnified Party’s rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been prejudiced thereby. The Indemnifying Party shall have the right to defend any such Third Party Claim reasonably promptly after becoming aware and control the defense of such Third Party Claim; provided, however, that failure the Indemnified Party has the right to give such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with reasonably approve counsel selected by the Indemnifying Party and reasonably satisfactory to the IndemniteeParty. Should If the Indemnifying Party, within ten (10) Business Days after notice of such Third Party so elect Claim, fails to assume the defense of a take appropriate steps to defend such Third Party Claim, the Indemnifying Indemnified Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory upon further notice to the Indemnifying Party) have the right to undertake the defense of such Third Party Claim on behalf of and one local counsel to represent such Indemnitee for the account and in that event at the reasonable fees risk and expenses expense of each such counsel shall be paid by such the Indemnifying Party. If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnitee Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof and to employ counselthereof, at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for but the fees and expenses of such counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, expense of the Indemnifying Indemnified Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification ; provided that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, if in the reasonable opinion of counsel for the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Indemnified Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. If the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which a disagreement between counsel for the amount of parties regarding the claim (or any portion thereof) is estimated, on such later date when the amount presence of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided abovea conflict, the Indemnifying reasonable opinion of independent counsel selected by the parties), there is a conflict of interest between the Indemnified Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party shall be responsible for the reasonable fees and expenses of separate counsel to such Indemnified Party in connection with such defense. Notwithstanding any of the Indemnitee will resolve foregoing, (i) the Indemnifying Party shall not, without the written consent of the Indemnified Party, settle or compromise any claim or consent to the entry of any judgment which does not include as an unconditional term thereof the giving by the claimant to the Indemnified Party of a release from all liability in respect of such dispute claim, and (ii) if a claim involves any criminal or civil investigation or proceeding by any Governmental Authority relating to the Indemnified Party or its Affiliates, the Indemnified Party shall have the right to assume the defense and direct, through counsel of its own choosing, the response to, defense of or settlement of any such claim, and shall be entitled to seek indemnification from the Indemnifying Party for the reasonable cost thereof (in accordance addition to any Losses resulting therefrom); provided that the Indemnified Party shall consult with Section 14.11the Indemnifying Party for the purpose of allowing the Indemnifying Party to participate, at the Indemnifying Party’s expense, in such response, defense or settlement.
(b) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that is not a Third Party Claim, the Indemnified Party shall notify the applicable Indemnifying Party in writing of the same within thirty
Appears in 1 contract
Sources: Contribution and Purchase Agreement
Procedures for Indemnification. (a) THIRD PARTY CLAIMS. If a claim or demand is made against a Media Information Indemnitee or a New Ceridian Indemnitee (each, an "Indemnitee, or an Indemnitee shall otherwise learn of an assertion, ") by any Person person who is not a party to this Agreement (or an Affiliate thereof) (a "Third Party Claim") as to which one or more parties (collectively, the "Indemnifying Party") may be obligated such Indemnitee is entitled to provide indemnification pursuant to this Agreement, such Indemnitee will shall notify the party which is or may be required pursuant to Section 3.1 or Section 3.2 hereof to make such indemnification (the "Indemnifying Party Party") in writing, and in reasonable detail, of the Third Party Claim reasonably promptly (and in any event within 15 business days) after becoming aware receipt by such Indemnitee of such written notice of the Third Party Claim; provided, however, that failure to give such notification will shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure.
failure (bexcept that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice). Thereafter, the Indemnitee shall deliver to the Indemnifying Party, promptly (and in any event within five business days) after the Indemnitee's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitee relating to the Third Party Claim. If a Third Party Claim is made against an Indemnitee and Indemnitee, the Indemnifying Party unconditionally shall be entitled to participate in the defense thereof and, if it so chooses and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof)therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and Party; provided that such counsel is not reasonably satisfactory objected to by the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will shall, within 30 days (or sooner if the nature of the Third Party Claim so requires), notify the Indemnitee of its intent to do so, and the Indemnifying Party shall thereafter not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided thatprovided, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, that such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local 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 which would make representation of both such parties by one counsel inappropriate, and in that such event the reasonable fees and expenses of each such separate counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claimsuch defense, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, subject to the proviso of the preceding sentence, at its own expense (except as otherwise provided in the preceding sentence)expense, separate from the counsel employed by the Indemnifying Party, it being understood, subject to the proviso of the preceding sentence, that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect (other than during the period prior to assume the defense thereof (including acknowledging its indemnification obligation time the Indemnitee shall have given notice of the Third Party Claim as aforesaidprovided above). If the Indemnifying Party assumes so elects to assume the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies all of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation or prosecution thereof, including by providing or causing to be at the expenseprovided, including reasonable legal fees Records and expenses, witnesses as soon as reasonably practicable after receiving any request therefor from or on behalf of the Indemnifying Party).
(c) . If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee responsibility for a Third Party Claim, then in no event will the Indemnitee admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim (subject without the Indemnifying Party's prior written consent; provided, however, that the Indemnitee shall have the right to verification that any losses settle, compromise or costs discharge such Third Party Claim without the consent of the Indemnifying Party if the Indemnitee releases the Indemnifying Party from its indemnification obligation hereunder with respect to such Third Party Claim and such settlement, compromise or discharge would not otherwise adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges in respect thereof constitute Damages and compliance with the other terms hereof)writing liability for a Third Party Claim, the Indemnitee will agree to any settlement, compromise or discharge of such a Third Party Claim which that the Indemnifying Party may recommend and which that by its terms obligates the Indemnifying Party to pay the full amount of Damages the liability in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, Claim and that would not otherwise adversely affect the Indemnitee; provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and that the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of if the Indemnitee could reasonably agrees that the Indemnifying Party's indemnification obligation with respect to such Third Party Claim shall not exceed the amount that would be expected required to materially and adversely affect the Indemnitee. If be paid by or on behalf of the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation connection with such settlement, compromise or discharge. If an Indemnifying Party elects not to indemnify assume the Indemnitee for defense of a Third Party Claim, the or fails to notify an Indemnitee shall not (unless required by law) admit any liability with respect toof its election to do so as provided herein, such Indemnitee may compromise, settle or settle, compromise or discharge, defend such Third Party Claim without Claim. Notwithstanding the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify foregoing, the Indemnifying Party shall not relieve be entitled to assume the Indemnifying defense of any Third Party Claim (and shall be liable for the fees and expenses of counsel incurred by the Indemnitee in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with its counsel, cannot be separated from any liability which it may have to related claim for money damages. If such Indemnitee under this Agreementequitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failurebe entitled to assume the defense of the portion relating to money damages. If The parties hereto acknowledge that the Indemnifying Party does not dispute its liability Media Information Liabilities include the litigation identified on Schedule 1.1(ll) hereto and any additional Actions brought in connection therewith (the "Media Information Litigation") and the New Ceridian Liabilities include the litigation identified on Schedule 1.1(ll)A hereto and any additional Actions brought in connection therewith (the "New Ceridian Litigation"). Notwithstanding anything in this Agreement to the Indemnitee contrary: (a) any claims or demands in connection with the Media Information Litigation or the New Ceridian Litigation shall not be deemed Third Party Claims for purposes of this Agreement; (b) the Corporation, with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claimMedia Information Litigation, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability and New Ceridian with respect to the New Ceridian Litigation, shall have the exclusive right to (i) control the defense of such claimlitigation, and (ii) settle, compromise or discharge such litigation; and (c) the Corporation with respect to the New Ceridian Litigation, and New Ceridian with respect to the Media Information Litigation, shall have no right to participate in such litigation. In addition, the Corporation with respect to the New Ceridian Litigation, and New Ceridian with respect to the Media Information Litigation, shall: (a) provide litigation services pursuant to the terms of Section 2.9; and (b) to the extent reasonably requested by the Corporation or New Ceridian, as provided abovethe case may be, sign such documents as may be reasonably necessary to effect or assist in the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution pursuit, defense, settlement, compromise or discharge of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11litigation.
Appears in 1 contract
Procedures for Indemnification. As used herein, an "Indemnified Party" means a Party seeking indemnification for any Loss (aincluding, but not limited to attorneys fees) If a claim pursuant to Section 9.2 or demand 9.3 hereof, as applicable, and the term "Indemnifying Party" means the Party who is made against an Indemniteeobligated to provide indemnification under Section 9.2 or Section 9.3, as applicable. The Indemnified Party agrees to give the Indemnifying Party prompt written notice of any event, or an Indemnitee shall otherwise learn any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect of an assertion, by any Person who is not a third party to this Agreement (or an Affiliate thereof) (a "Third Party Claim") as to of which one or more parties (collectivelyit has knowledge, the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement, for which such Indemnitee will notify the Indemnifying Indemnified Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, that failure to give such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnifying Party will be entitled to assume indemnification under this Article 10. In the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense case of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate direct, through counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes its own choosing, the defense or settlement of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim at its own expense. In such case, the Indemnified Party may participate in such defense, but in such case the expenses of the Indemnified Party will be paid by the Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party with access to the Indemnified Party's records and keep the Indemnitee fully informed of all developments personnel relating to or in connection with any such Third Party Claim (including providing to the Indemnitee on request updates during normal business hours and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably will otherwise cooperate with the Indemnifying Party in the defense thereof (or settlement of such cooperation to be at Third Party Claim, and the expenseIndemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, including reasonable legal fees personnel and expenses, cooperation. Upon assumption of the defense of any such Third Party Claim by the Indemnifying Party).
, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Party Claim, unless the Indemnifying Party consents in writing to such payment (cwhich consent will not be unreasonably withheld) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, which consent will not be unreasonably withheld. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation fails to indemnify defend or fails to prosecute or withdraws from such defense, then the Indemnitee for a Third Indemnified Party Claim (subject will have the right to verification that any losses undertake the defense or costs in respect thereof constitute Damages and compliance with settlement thereof, at the other terms hereof), Indemnifying Party's expense. If the Indemnitee will agree to any settlement, compromise or discharge Indemnified Party assumes the defense of such Third Party Claim which pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party may recommend prompt written notice thereof and which by its terms obligates the Indemnifying Party will have the right to pay participate in the full amount settlement or assume or reassume the defense of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. If the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Epic Energy Resources, Inc.)
Procedures for Indemnification. (a) If a claim or demand is An Indemnification Claim shall be made against an Indemnitee, or by an Indemnitee shall otherwise learn by delivery of an assertiona written notice to the Indemnitor Representative (as defined in Section 9.10 below) requesting indemnification and specifying the basis on which indemnification is sought and the amount of asserted Losses and, by any Person who is not in the case of a party to this Agreement (or an Affiliate thereof) (a "Third Party Claim", containing (by attachment or otherwise) such other information as to which one or more parties (collectively, the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement, such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of shall have concerning such Third Party Claim; provided, however, that failure to give such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure.
(b) If the Indemnification Claim involves a Third Party Claim is made against an the procedures set forth in Section 8.3 shall be observed by the Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying PartyIndemnitor Representative(s).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for Indemnification Claim involves a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the matter other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for than a Third Party Claim, the Indemnitor Representative(s) shall have 30 days to object to such Indemnification Claim by delivery of a written notice of such objection to such Indemnitee specifying in reasonable detail the basis for such objection. Failure to timely so object shall not constitute a final and binding acceptance of the Indemnification Claim by the Indemnitor Representative(s) on behalf of all Indemnitors, and the Indemnification Claim shall be paid in accordance with subsection (unless required by lawd) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld)hereof.
(d) Any claim on account Upon determination of Damages which does not involve a Third Party Claim shall be asserted the amount of an Indemnification Claim, whether by reasonably prompt written notice given by agreement between the Indemnitor Representative(s) and the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure or by an arbitration award or by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. If the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claimother final adjudication, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party Indemnitors shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount Indemnification Claim within ten days of the claim (or any portion thereof) date such amount is estimateddetermined. In the event that the ACSYS Shareholders are the Indemnitors that are required to pay an Indemnification Claim, on if the ACSYS Shareholders beneficially own shares of ICCE Common Stock as of such later date when date, the ACSYS Shareholders shall, if so required by ICCE, pay the amount of such claim (or Indemnification Claim by surrender to ICCE of such portion thereof) becomes finally determined. If number of shares of ICCE Common Stock as shall equal the Indemnifying Party has timely disputed its liability with respect quotient obtained by dividing the amount of such Indemnification Claim by the amount set forth in Section 8.2 of the ICCE Disclosure Memorandum; provided, that if the ACSYS Shareholders do not beneficially own a sufficient number of shares of ICCE Common Stock to pay in full the amount of such claim, Indemnification Claim by surrender of such shares as provided abovein the preceding clause of this sentence, the Indemnifying Party ACSYS Shareholders shall surrender to ICCE such number of shares of ICCE Common Stock as such ACSYS Shareholders beneficially own and shall pay any remaining balance of the Indemnitee shall proceed Indemnification Amount in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11cash.
Appears in 1 contract
Sources: Merger Agreement (Acsys Inc)
Procedures for Indemnification. (a) If a claim there occurs an event that either party asserts is an indemnifiable event pursuant to Sections 11.01 or demand is made against an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, by any Person who is not a party to this Agreement (or an Affiliate thereof) (a "Third Party Claim") as to which one or more parties (collectively11.02, the "Indemnifying Party"party seeking indemnification (the “Indemnitee”) may be shall promptly provide notice (the “Notice of Claim”) to the other party or parties obligated to provide indemnification pursuant (the “Indemnifying Party”). Providing the Notice of Claim shall be a condition precedent to this Agreement, such Indemnitee will notify any liability of the Indemnifying Party in writinghereunder, and in reasonable detail, the failure to provide prompt notice as provided herein will relieve the Indemnifying Party of its obligations hereunder but only if and to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the Third commencement thereof, the Indemnifying Party Claim shall be entitled to participate therein and, to the extent that it shall wish, to assume the defense thereof, with counsel reasonably promptly satisfactory to such Indemnitee and, after becoming aware notice from the Indemnifying Party to such Indemnitee of such Third election so to assume the defense thereof, the Indemnifying Party Claimshall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that failure to give such notification will not affect if the indemnification provided hereunder except to the extent Indemnitee reasonably believes that counsel for the Indemnifying Party shall have been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an cannot represent both the Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges because such representation would be reasonably likely to result in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claiminterest, such then the Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to defend, at the sole cost and expense of the Indemnifying Party) and one local counsel , such action by all appropriate proceedings. The Indemnitee agrees to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If reasonably cooperate with the Indemnifying Party assumes and its counsel in the defense of against any Third Party Claimsuch asserted liability. In any event, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence)defense of such asserted liability. No Indemnifying Party, separate in the defense of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the counsel employed payment of money damages by the Indemnifying PartyPerson with no further liability or obligation on the part of the Indemnitee. The Indemnifying Party agrees to afford the Indemnitee and its counsel, at the Indemnitee’s sole expense, the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall be liable the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the fees and expenses of counsel employed Indemnitee, (ii) injunctive relief affecting the Indemnitee, or (iii) prospective action or inaction by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof Indemnitee.
(including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense b) Upon receipt of any Third Party a Notice of Claim, the Indemnifying Party will promptly supply shall have thirty calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee copies (the “Contest Notice”); provided, however, that if, at the time a Notice of all correspondence and documents relating Claim is submitted to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses the amount of the Loss in respect thereof has not yet been determined, such thirty day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in setting forth the defense thereof (such cooperation to be at amount of the expense, including reasonable legal fees and expenses, Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such thirty day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party).
(c) If the Indemnifying Party unconditionally fails to assume the defense of such Claim or, having assumed the defense and irrevocably acknowledges settlement of such Claim, fails reasonably to contest such Claim in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof)good faith, the Indemnitee will agree Indemnitee, without waiving its right to any settlementindemnification, compromise or discharge may assume, at the cost of the Indemnifying Party, the defense and settlement of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, ; provided, however, that, without the Indemnitee's prior written consent, that (i) the Indemnifying Party shall not consent be permitted to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, join in the reasonable opinion defense and settlement of the Indemnitee could reasonably be expected such Claim and to materially and adversely affect the Indemnitee. If employ counsel at its own expense, (ii) the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify shall cooperate with the Indemnitee for a Third Party Claim, in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, settle such Third Party Claim without obtaining the prior written consent of the Indemnifying Party's prior written consent (, which consent shall not be unreasonably withheld)withheld or delayed.
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the The Indemnifying Party from whom shall make any payment required to be made under this Article XI in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within fifteen business days of the date on which such indemnification is sought. The failure by any Indemnitee so to notify obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except pay to the extent that Indemnitee, immediately upon demand, interest at the Indemnifying Party shall have been actually prejudiced rate of ten percent per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such failure. If the Indemnifying Party does not dispute its liability payment becomes delinquent to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration date of a 30-calendar-day period following the Indemnifying Party's receipt of notice payment of such claimdelinquent sums, the claim which interest shall be conclusively deemed a liability considered to be Losses of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11Indemnitee.
Appears in 1 contract
Procedures for Indemnification. (a) 8.3.1. If a claim or demand is made against an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, by any Person who is not a party to this Agreement (or and who is not an Affiliate thereofof a party to this Agreement) (a "Third Party Claim") as to which one or more parties a party (collectively, the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement, such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, that failure to give any such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failurefailure and to such extent.
(b) 8.3.2. If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation agrees to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof)therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereofthereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claimclaim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee shall will have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such separate counsel shall will be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any such Third Party Claim, the each Indemnitee shall will have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence)expense, separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall will be liable for the reasonable fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation the agreement by each Indemnifying Party to indemnify the Indemnitee as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall will reasonably cooperate with the Indemnifying Party in the defense thereof if requested by the Indemnifying Party (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
8.3.3. No Indemnifying Party will consent to any settlement, compromise or discharge (cincluding the consent to entry of any judgment) If of any Third Party Claim without the Indemnitee's prior written consent, which will not be unreasonably withheld; provided, that if the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation agrees to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof)Claim, the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and that unconditionally and irrevocably releases the Indemnitee (and pursuant to a release which is reasonably satisfactory to the other members of the Buyer Group or the Seller Group, as the case may beIndemnitee) completely from all Liability in connection with such Third Party Claim, ; provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and that the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect that provides for injunctive or other non-monetary relief affecting the Indemnitee. If the an Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation agrees to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall will not be unreasonably withheld).
(d) 8.3.4. Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall will not relieve the Indemnifying Party from any liability which that it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced by as a result of such failurefailure and to such extent. If the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made in such notice by notice to notify the Indemnitee prior to the expiration of a 3045-calendar-day period following its receipt of such notice that the Indemnifying Party's receipt of Party disputes its liability to the Indemnitee under this Agreement, such claim specified by the Indemnitee in such notice of such claim, the claim shall will be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Agreement and the Indemnifying Party shall pay the amount of Damages subject to such liability claim to the Indemnitee on demand or, in the case of any notice in which the amount of the Damages subject to such claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such Damages subject to such claim, as provided above, the Indemnifying Party and the Indemnitee shall will proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve be free to pursue such dispute remedies as may be available under this Agreement or applicable law.
8.3.5. The procedures set forth in accordance with this Section 14.118.3 (Procedures for Indemnification), shall not govern any claim or demand made under Section 8.1 (Indemnity by Shareholder) for any inaccuracy in the representations and warranties set forth in Section 5.9 (Tax Matters) or any claims made under Section 8.5 (Tax Indemnity).
Appears in 1 contract
Sources: Share Sale and Purchase Agreement (DST Systems Inc)
Procedures for Indemnification. (a) If there occurs a claim Loss that either Party asserts is indemnifiable pursuant to Section 5.1 or demand is made against an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, by any Person who is not a party to this Agreement (or an Affiliate thereof) (a "Third Party Claim") as to which one or more parties (collectively5.2, the "Indemnifying Party"Party seeking indemnification (the “Indemnitee”) may be shall promptly provide notice (the “Notice of Claim”) to the other Party or Parties obligated to provide indemnification pursuant (the “Indemnifying Party”); provided, that the failure of any Indemnitee to give prompt notice as provided in this Agreement, such Indemnitee will notify Section 5.3 shall not relieve the Indemnifying Party in writing, of its obligations under Article V except and in reasonable detail, only to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such Action or Proceeding shall be brought against any Indemnitee and the Indemnitee shall provide a Notice of Claim to the Indemnifying Party of the Third commencement thereof, the Indemnifying Party Claim shall be entitled to participate therein and, to the extent that it shall wish, to assume the defense thereof, with counsel reasonably promptly satisfactory to such Indemnitee and, after becoming aware notice from the Indemnifying Party to such Indemnitee of such Third election so to assume the defense thereof, the Indemnifying Party Claimshall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that failure to give such notification will not affect if the indemnification provided hereunder except to the extent Indemnitee reasonably believes that counsel for the Indemnifying Party shall have been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an cannot represent both the Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges because such representation would be reasonably likely to result in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claiminterest, such then the Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to defend, at the sole cost and expense of the Indemnifying Party) and one local counsel , such action by all appropriate proceedings. The Indemnitee agrees to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If reasonably cooperate with the Indemnifying Party assumes and its counsel in the defense of against any Third Party Claimsuch asserted liability. In any event, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Partydefense of such asserted liability. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, consent to the entry of a judgment (which shall not be unreasonably withheld, conditioned or delayed), settle any period during Claim or consent to the entry of a judgment on any terms other than the payment of money for which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof is wholly liable.
(including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense b) Upon receipt of any Third Party a Notice of Claim, the Indemnifying Party will promptly supply shall have twenty (20) calendar days to contest its indemnification obligation with respect to such claim, or the amount thereof, by providing written notice to the Indemnitee copies (the “Contest Notice”); provided, however, that if, at the time a Notice of all correspondence and documents relating Claim is submitted to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses the amount of the Loss in respect thereof has not yet been determined, such 20-day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in setting forth the defense thereof (such cooperation to be at amount of the expense, including reasonable legal fees and expenses, Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due to the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20-day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party).
(c) If the Indemnifying Party unconditionally fails to assume the defense of such Claim or, having assumed the defense and irrevocably acknowledges settlement of such Claim, fails reasonably to contest such Claim in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof)good faith, the Indemnitee will agree Indemnitee, without waiving its right to any settlementindemnification, compromise or discharge may assume, at the cost of the Indemnifying Party, the defense and settlement of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, ; provided, however, that, without the Indemnitee's prior written consent, that (i) the Indemnifying Party shall not consent be permitted to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, join in the reasonable opinion defense and settlement of the Indemnitee could reasonably be expected such Claim and to materially and adversely affect the Indemnitee. If employ counsel at its own expense, (ii) the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify shall cooperate with the Indemnitee for a Third Party Claim, in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, settle such Third Party Claim without soliciting the views of the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld)Party and giving them due consideration.
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. If the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability make any payment required to the Indemnitee be made under this Article V in cash and on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11demand.
Appears in 1 contract
Sources: Asset Purchase Agreement (Martin Midstream Partners Lp)
Procedures for Indemnification. (a) If Any Person making a claim for indemnification under Sections 7.2 or 7.3 (an “Indemnified Party”) shall notify the party against whom indemnification is sought (an “Indemnifying Party”) of the claim in writing (such written notice, an “Indemnification Notice”) promptly after receiving notice of any action, lawsuit, proceeding, investigation, demand is made or other claim against an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, the Indemnified Party by any Person who is not a third party to this Agreement (or an Affiliate thereof) (a "“Third Party Claim") as ”). Each such Indemnification Notice shall describe, in reasonable detail to which one or more parties (collectivelythe extent practicable, the "Indemnifying Party"applicable Third Party Claim, including the facts giving rise to such claim for indemnification hereunder, the amount or method of computation of the amount of such claim (if known) may be obligated to provide indemnification pursuant to this Agreement, and such Indemnitee will notify other information with respect thereto as the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim may reasonably promptly after becoming aware of such Third Party Claimrequest; provided, however, that the failure to give such notification will so notify an Indemnifying Party shall not affect relieve the indemnification provided Indemnifying Party of its obligations hereunder except to the extent that (and only to the extent that) the Indemnifying Party shall have been actually is materially prejudiced as a result of by such failure.
(b) If a Any Indemnifying Party shall be entitled to participate in the defense of such Third Party Claim is made against at such Indemnifying Party’s expense, and, at its option if exercised within 10 business days after receiving an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof)Indemnification Notice, the Indemnifying Party will shall be entitled to assume the defense thereof (at by appointing a reputable counsel to be the expense of the Indemnifying Party) with lead counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with such defense; provided, however, that the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which Indemnified Party shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee shall have the right entitled to participate in the defense thereof of such Third Party Claim and to employ counselcounsel of its choice for such purpose (provided, at its own expense (except as otherwise provided in the preceding sentence)however, separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for that the fees and expenses of such separate counsel employed shall be borne by the Indemnitee for any period during which the Indemnified Party and shall not be recoverable from such Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaidunder this Article VI). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all it will be conclusively established for purposes of this Agreement that the Indemnitees claims made in that Third Party Claim are within the scope of and subject to indemnification hereunder. Notwithstanding the foregoing, if the Indemnified Party shall reasonably cooperate with have determined in good faith and upon advice of counsel that an actual or likely conflict of interest makes representation of the Indemnifying Party in and the defense thereof (such cooperation to be at Indemnified Party by the expensesame counsel inappropriate, including reasonable legal fees and expenses, of or if the Indemnifying Party, in the reasonable judgment of the Indemnified Party, has failed to diligently pursue the relevant claims or defense, then the Indemnified Party may, upon notice to the Indemnifying Party, engage separate counsel, and the reasonable fees and expenses of such separate counsel shall be borne by the Indemnifying Party to the extent the Third Party Claim is indemnifiable hereunder. Notwithstanding anything to the contrary in this Section 7.5(b), the Indemnified Party will have the absolute right to conduct and control, through counsel of its choosing (the reasonable fees and expenses of which shall be paid by the Indemnifying Party, subject to the limitations set forth in this Article VI), the defense, compromise and settlement of any Third Party Claim if: (i) such Third Party Claim seeks an injunction or other equitable relief against the Indemnified Party, (ii) the Third Party Claim relates to or arises in connection with any criminal or quasi criminal Proceeding, (iii) the amount of Losses involved in such Third Party Claim exceeds the then-remaining amount available for indemnification pursuant to Section 7.4(a), or (iv) the Indemnifying Party does not elect to assume control of the defense within 10 business days after receiving an Indemnification Notice.
(c) If Upon assumption of the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that defense of any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which by the Indemnifying Party, the Indemnified Party may recommend and which by its terms obligates the Indemnifying Party will not pay, or permit to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members be paid, any part of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without unless the Indemnitee's prior written consentIndemnifying Party consents in writing to such payment. Notwithstanding anything to the contrary herein, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment)settle, and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such any Third Party Claim without the Indemnifying Party's prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed), unless the relief consists solely of: (i) money damages (all of which the Indemnifying Party shall pay), and (ii) includes a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all liability with respect thereto.
(d) In all cases, the Indemnified Party shall provide its reasonable cooperation to the Indemnifying Party in defense of claims or litigation relating to Third Party Claims, including by making employees, information and documentation reasonably available. If the Indemnifying Party does not assume the defense of any such Third Party Claim in accordance with the terms hereof, or fails to prosecute or withdraws from the defense of any such Third Party Claim, the Indemnified Party may defend against such matter in a manner consistent with the above provisions regarding conduct of the defense by the Indemnified Party; provided, however, that the Indemnified Party may not settle any such matter without the written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed).
(e) Any Indemnified Party making a claim on account of Damages which against any Indemnifying Party hereunder that does not involve a Third Party Claim shall be asserted by reasonably prompt written deliver notice given by the Indemnitee of such claim promptly to the Indemnifying Party, describing in reasonable detail the facts giving rise to any claim for indemnification hereunder, the amount or method of computation of the amount of such claim (if known) and such other information with respect thereto as the Indemnifying Party from whom such indemnification is sought. The may reasonably request; provided, however, the failure by any Indemnitee to so to notify the an Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, of its obligations hereunder except to the extent that (and only to the extent that) the Indemnifying Party shall have been actually is materially prejudiced by such failure. If the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (ARC Group, Inc.)
Procedures for Indemnification. (a) If a claim or demand is made against an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, by any Person person who is not a party to this Agreement (or an Affiliate thereof) (a "Third Party Claim") as to which one or more parties (collectively, the "Indemnifying Party") may be obligated such Indemnitee is entitled to provide indemnification pursuant to this Agreement, such Indemnitee will shall notify the Indemnifying Party Planet in writing, and in reasonable detail, of the Third Party Claim reasonably promptly (and in any event within 20 business days) after becoming aware receipt by such Indemnitee of such written notice of the Third Party Claim; provided, however, that failure to give such notification will within such 20 business day period shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party to which Planet shall have been actually prejudiced as a result of such failure.
failure (bexcept that Planet shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice). Thereafter, the Indemnitee shall deliver to Planet promptly (and in any event within 20 business days) after the Indemnitee's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitee relating to the Third Party Claim. If a Third Party Claim is made against an Indemnitee Indemnitee, Planet shall be entitled to participate in the defense thereof and, if it so chooses and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof)therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and Planet; provided that such counsel is not reasonably satisfactory objected to by the Indemnitee. Should the Indemnifying Party Planet so elect to assume the defense of a Third Party Claim, the Indemnifying Party will Planet shall not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party Planet assumes the defense of any Third Party Claimsuch defense, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence)expense, separate from the counsel employed by the Indemnifying PartyPlanet, it being understood that Planet shall control such defense. The Indemnifying Party Planet shall be liable for the fees and expenses of counsel employed by the Indemnitee (i) for any period during which the Indemnifying Party Planet has failed to assume the defense thereof (other than during the 20 business day period prior to the time the Indemnitee shall have given notice of the Third Party Claim as provided above) or if (ii) in the event the Indemnitee reasonably determines, based on the advice of its counsel that there shall exist a conflict of interest between the Indemnitee and Planet or that there are defenses available to the Indemnitee that are not available to Planet, the effect of which shall be to make it does not expressly elect impractical for the Indemnitee and Planet to be jointly represented by the same counsel, in which case Planet shall be liable for the fees and expenses of one counsel for all Indemnitees in any single or series of related Actions. If Planet so elects to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Indemnitee shall cooperate with Planet in the defense or prosecution thereof. If Planet acknowledges in writing liability for indemnification of a Third Party Claim, then in no event will promptly supply to the Indemnitee copies admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim without Planet's prior written consent; provided, however, that the Indemnitee shall have the right to settle, compromise or discharge such Third Party Claim without the consent of all correspondence and documents relating Planet if the Indemnitee releases Planet from its indemnification obligations hereunder with respect to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to such settlement, compromise or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof)discharge would not otherwise adversely affect Planet. If the Indemnifying Party chooses to defend Planet acknowledges in writing liability for indemnification of a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such a Third Party Claim which the Indemnifying Party that Planet may recommend and which that by its terms (i) obligates the Indemnifying Party Planet to pay the full amount of Damages the liability in connection with such Third Party Claim, (ii) releases the Indemnitee completely in connection with such Third Party Claim and unconditionally and irrevocably releases (iii) would not otherwise adversely affect the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, Indemnitee; provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and that the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in and may assume the reasonable opinion defense of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without if the Indemnifying PartyIndemnitee agrees (A) that Planet's prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a indemnification obligation with respect to such Third Party Claim shall not exceed the amount that would have been required to be asserted paid by reasonably prompt written notice given or on behalf of Planet in connection with such settlement, compromise or discharge and (B) to assume all costs and expenses thereafter incurred in connection with the defense of such Third Party Claim (other than those contemplated by subclause (A) herein above). Notwithstanding the foregoing, Planet shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the fees and expenses of counsel incurred by the Indemnitee to in defending such Third Party Claim) if the Indemnifying Third Party from whom such indemnification is sought. The failure by any Claim seeks an order, injunction or other equitable relief or relief other than money damages against the Indemnitee so to notify which the Indemnifying Party shall Indemnitee reasonably determines, based on the advice of its counsel, cannot relieve the Indemnifying Party be separated from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failurerelated claim for money damages. If such equitable or other relief portion of the Indemnifying Third Party does not dispute its liability to the Indemnitee with respect to Claim can be so separated from the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claimfor money damages, the claim Planet shall be conclusively deemed a liability entitled to assume the defense of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability portion relating to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11money damages.
Appears in 1 contract
Sources: Agreement and Plan of Distribution (Planet Resources Inc /De/)
Procedures for Indemnification. (a) If a claim or demand is made against an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, by any Person person who is not a party to this Distribution Agreement (or an Affiliate thereof) (a "Third Party Claim") as to which one or more parties (collectively, the "Indemnifying Party") may be obligated such Indemnitee is entitled to provide indemnification pursuant to this Distribution Agreement, such Indemnitee will shall notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly (and in any event within 20 business days) after becoming aware receipt by such Indemnitee of such written notice of the Third Party Claim; provided, however, that failure to give such notification will within such 20 business day period shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failurefailure (except that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice). Thereafter, the Indemnitee shall deliver to the Indemnifying Party, promptly (and in any event within 20 business days) after the Indemnitee's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitee relating to the Third Party Claim.
(b) If a Third Party Claim is made against an Indemnitee and Indemnitee, the Indemnifying Party unconditionally shall be entitled to participate in the defense thereof and, if it so chooses and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof)therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and Party; provided that such counsel is not reasonably satisfactory objected to by the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will shall not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claimsuch defense, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence)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 fees and expenses of counsel employed by the Indemnitee (i) for any period during which the Indemnifying Party has failed to assume the defense thereof (other than during the 20 business day period prior to the time the Indemnitee shall have given notice of the Third Party Claim as provided above) or if (ii) in the event the Indemnitee reasonably determines, based on the advice of its counsel that there shall exist a conflict of interest between the Indemnitee and the Indemnifying Party or that there are defenses available to the Indemnitee that are not available to the Indemnifying Party, the effect of which shall be to make it does not expressly elect impractical for the Indemnitee and the Indemnifying Party to assume be jointly represented by the defense thereof (including acknowledging its indemnification obligation as aforesaid)same counsel, in which case the Indemnifying Party shall be liable for the fees and expenses of one counsel for all Indemnitees in any single or series of related Actions. If the Indemnifying Party assumes so elects to assume the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party)or prosecution thereof.
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee liability for indemnification of a Third Party Claim, then in no event will the Indemnitee admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim (subject without the Indemnifying Party's prior written consent; provided, however, that the Indemnitee shall have the right to verification that any losses settle, compromise or costs discharge such Third Party Claim without the consent of the Indemnifying Party if the Indemnitee releases the Indemnifying Party from its indemnification obligation hereunder with respect to such Third Party Claim and such settlement, compromise or discharge would not otherwise adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges in respect thereof constitute Damages and compliance with the other terms hereof)writing liability for indemnification of a Third Party Claim, the Indemnitee will agree to any settlement, compromise or discharge of such a Third Party Claim which that the Indemnifying Party may recommend and which that by its terms (i) obligates the Indemnifying Party to pay the full amount of Damages the liability in connection with such Third Party Claim, (ii) releases the Indemnitee completely in connection with such Third Party Claim and unconditionally and irrevocably releases (iii) would not otherwise adversely affect the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, Indemnitee; provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and that the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in and may assume the reasonable opinion defense of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without if the Indemnitee agrees (A) that the Indemnifying Party's prior written consent (which consent indemnification obligation with respect to such Third Party Claim shall not exceed the amount that would have been required to be unreasonably withheldpaid by or on behalf of the Indemnifying Party in connection with such settlement, compromise or discharge and (B) to assume all costs and expenses thereafter incurred in connection with the defense of such Third Party Claim (other than those contemplated by subclause (A) herein above).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by Notwithstanding the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify foregoing, the Indemnifying Party shall not relieve be entitled to assume the Indemnifying defense of any Third Party Claim (and shall be liable for the fees and expenses of counsel incurred by the Indemnitee in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief other than money damages against the Indemnitee which the Indemnitee reasonably determines, based on the advice of its counsel, cannot be separated from any liability which it may have to related claim for money damages. If such Indemnitee under this Agreementequitable or other relief portion of the Third Party Claim can be so separated from the claim for money damages, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. If be entitled to assume the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability defense of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability portion relating to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11money damages.
Appears in 1 contract
Sources: Indemnification Agreement (Planet Resources Inc /De/)
Procedures for Indemnification. (a) If a claim or demand is made against Promptly after receipt by an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, by any Person who is not a indemnified party to this Agreement (or an Affiliate thereof) (a "Third Party Claim") as to which one or more parties (collectively, the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement, such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, provisions of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, that failure to give such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure.
Sections (b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If of this Section 7 of notice of a third party claim or the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation commencement of any third party action pursuant to indemnify the Indemnitee for a Third Party Claim provisions of such Sections 7(b) or (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereofc), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with indemnified party shall promptly notify such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members indemnifying party of the Buyer Group or commencement thereof; but the Seller Group, as the case may be) completely from all Liability in connection with omission to so notify such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall indemnifying party will not relieve the Indemnifying Party it from any liability which it may have to the indemnified party otherwise than hereunder unless the indemnified party is materially prejudiced thereby. In case such Indemnitee under this Agreementaction is brought against an indemnified party and it notifies the indemnifying party of the commencement thereof, except the indemnifying party shall have the right to participate in, and, to the extent that it may wish, to assume the Indemnifying Party defense thereof, with counsel reasonably satisfactory to such indemnified party; provided, however, if the defendants in any action include both the indemnified party and the indemnifying party and the indemnified party shall have been actually prejudiced reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party, or if there is a conflict of interest which would prevent counsel for the indemnifying party from also representing the indemnified party, the indemnified party shall have the right to select separate counsel to participate in the defense of such action on behalf of such indemnified party. After notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to the indemnified party pursuant to the provisions of such Sections 7(b) or (c) for any legal or other expense subsequently incurred by such failure. If indemnified party in connection with the Indemnifying Party does defense thereof other than reasonable costs of investigation, unless (1) the indemnified party shall have promptly employed counsel in accordance with the proviso of the preceding sentence, (2) the indemnifying party shall not dispute its liability have employed counsel reasonably satisfactory to the Indemnitee with respect indemnified party to represent the claim made in such notice by notice to indemnified party within a reasonable time after the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability commencement of the Indemnifying Party under this Agreementaction, or (3) the indemnifying party has authorized the employment of counsel for EXHIBIT 2.2 the indemnified party at the expense of the indemnifying party. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand orNo indemnifying party, in the case defense of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim or litigation, shall, except with the consent of each indemnified party (such consent not to be unreasonably withheld), consent to entry of any judgment or such portion thereof) becomes finally determined. If enter into any settlement which does not include as an unconditional term thereof the Indemnifying Party has timely disputed its release from all liability with in respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11or litigation.
Appears in 1 contract
Procedures for Indemnification. (a) If a claim Company Event of Breach or demand is made against an Indemnitee, or an Indemnitee shall otherwise learn a Wexford Event of an assertion, by any Person who is not a party to this Agreement (or an Affiliate thereof) Breach (a "Third Party ClaimParty's Event of Breach") as to which one occurs or more parties is alleged and either the Company or the Wexford Indemnitees (collectively, the a "Indemnifying PartyParty Indemnitee") may be asserts that the other party has become obligated to provide indemnification it pursuant to this AgreementSection 7.1 or 7.2, or if any claim is begun, made or instituted as a result of which the other party may become obligated to a Party Indemnitee hereunder, such Party Indemnitee will notify shall give prompt notice to the Indemnifying other party. The Party in writing, and in reasonable detail, Indemnitee shall permit the other party (at its expense) to assume the defense of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claimany claim; provided, however, that failure to give such notification will not affect (a) the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with counsel for the other terms hereof), the Indemnifying Party will be entitled to assume party who shall conduct the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying PartyParty Indemnitee, (b) the Party Indemnitee may participate in such defense at its expense, and one local counsel (c) the omission by the Party Indemnitee to represent give notice as provided herein shall not relieve the other party of its indemnification obligation except to the extent that such Indemnitee omission results in a failure of actual notice to the other party and the other party is materially damaged as a result of such failure to give notice. Except with the prior written consent of the Party Indemnitee, the other party shall not, in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third such claim, consent to entry of any judgment or enter into any settlement that provides for injunctive or other nonmonetary relief affecting the Party ClaimIndemnitee or that does not include as an unconditional term thereof the giving by each claimant or plaintiff to such Party Indemnitee of a release from all liability with respect to such claim or litigation. In the event that the Party Indemnitee shall in good faith determine that the conduct of the defense of any claim subject to indemnification hereunder or any proposed settlement of any such claim by the other party might be expected to affect adversely the ability of the Party Indemnitee to conduct its business, or that the Party Indemnitee may have available to it one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the other party in respect of such claim relating thereto, the Party Indemnitee shall have the right at all times to participate in take over and assume control over the defense thereof and defense, settlement, negotiations or litigation relating to employ counsel, any such claim at its own expense the sole cost of the other party (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the including without limitation reasonable attorneys' fees and expenses disbursements and other amounts paid as the result of counsel employed by such claim); provided, however, that if the Party Indemnitee for any period during which does so take over and assume control, the Indemnifying Party has failed Indemnitee shall not settle such claim without the prior written consent of every other party, such consent not to assume be unreasonably withheld. In the defense thereof or if it event that every other party does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes accept and continue the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. If the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, matter as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith have the full right to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of defend against any such claim was given and shall be entitled to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve settle or agree to pay in full such dispute in accordance with Section 14.11claim.
Appears in 1 contract
Sources: Restructuring Agreement (Wahlco Environmental Systems Inc)
Procedures for Indemnification. (a) No party hereto will be liable for any Claim for indemnification under this Article IX unless written notice of a Claim for indemnification is delivered by the party seeking indemnification (the “Indemnified Party”) to the Party from whom indemnification is sought (the “Indemnifying Party”) prior to the expiration of the applicable survival period, if any, set forth in Section 9.1. If any third party notifies the Indemnified Party with respect to any matter which may give rise to a claim or demand is made against an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, by any Person who is not a party to this Agreement (or an Affiliate thereof) Claim for indemnification (a "“Third Party Claim"”) as to which one or more parties (collectivelyagainst the Indemnifying Party under this Article IX, then the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement, such Indemnitee Indemnified Party will notify the Indemnifying Party promptly thereof in writing, writing and in any event within 15 days after receiving notice from a third party; provided that no delay on the part of the Indemnified Party in notifying the Indemnifying Party will relieve the Indemnifying Party from any obligation hereunder unless the Indemnifying Party is prejudiced thereby. All notices given pursuant to this Section 9.4 will describe with reasonable detail, specificity the Third Party Claim and the basis of the Indemnified Party’s Claim for indemnification. Once the Indemnified Party has given notice of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, that failure to give such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof)Party, the Indemnifying Party will be entitled to participate therein and, to the extent desired, to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by of its choice, provided, however, the Indemnifying Indemnified Party may participate (but not control) such defense and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect after notice of its election to assume the defense of a Third Party Claimthereof, the Indemnifying Party will not be liable to the Indemnitee Indemnified Party for any legal or other expenses subsequently incurred by the Indemnitee Indemnified Party in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counselother than reasonable costs of investigation, at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which unless the Indemnifying Party has failed to does not actually assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge following notice of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failureelection. If the Indemnifying Party does not dispute assume the defense of such Third Party Claim, the Indemnified Party will have the right to undertake the defense of such Third Party Claim, by counsel or other representatives of its liability own choosing, on behalf of and for the account and risk of the Indemnifying Party (subject to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following limitations on the Indemnifying Party's receipt ’s obligations to indemnify otherwise set forth in this Article IX and to the right of notice the Indemnifying Party to assume the defense of or opposition to such claimThird Party Claim at any time prior to settlement, compromise or final determination thereof).
(b) Neither the claim shall Indemnified Party nor the Indemnifying Party will consent to the entry or any judgment or enter into any settlement of any Third Party Claim that might give rise to liability of the other Party under this Article IX without such Party’s consent, which will not be conclusively deemed a unreasonably withheld or delayed. If the Indemnifying Party elects to settle any such Third Party Claim, and the Indemnified Party refuses to consent to such compromise or settlement, then the liability of the Indemnifying Party under this Agreement. The Indemnifying to the Indemnified Party shall pay will be limited to the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If offered by the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11compromise or settlement.
Appears in 1 contract
Procedures for Indemnification. Subject to Section 9.5 of this Agreement, a Party seeking indemnification under this Article IX (athe "Indemnified Party") If shall promptly notify the Party against whom a claim or demand for indemnification is made against an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, by any Person who is not a party to sought under this Agreement (or an Affiliate thereof) (a "Third Party Claim") as to which one or more parties (collectively, the "Indemnifying Party") may be obligated in writing, which notice shall specify, in reasonable detail, the nature and estimated amount of the claim and shall include a complete and accurate copy of any notice, complaint or other information received by the Indemnified Party with respect to provide indemnification pursuant such claim. If a claim by a third party is made against an Indemnified Party, and if the Indemnified Party intends to seek indemnity with respect thereto under this AgreementArticle IX, the Indemnified Party shall promptly (but in no event longer than 30 days ("Indemnity Notice Period") of such Indemnitee will claim being made) notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of such Third claim and the reasonable details thereof, including a complete and accurate copy of any notice, complaint or other information received by the Indemnified Party Claimwith respect to such claim; provided, however, that failure to give such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so an Indemnified Party to notify the Indemnifying Party of a claim within the Indemnity Notice Period for such claim shall not relieve affect the Indemnifying Party from any liability which it may have Indemnified Party's right to such Indemnitee indemnification under this Agreement, the Article IX except (and then only) to the extent that the Indemnifying Party shall have been is actually prejudiced by such failure. The Indemnifying Party shall have 30 days after receipt of such notice to undertake, conduct and control, through counsel of its own choosing and at its expense, the settlement or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith, except that with respect to settlements entered into by the Indemnifying Party (i) the consent of the Indemnified Party shall be required if the settlement provides for equitable relief against, or otherwise adversely affects, the Indemnified Party, which consent shall not be unreasonably withheld or delayed; and (ii) the Indemnifying Party shall obtain a complete release of the Indemnified Party. If the Indemnifying Party does not dispute its liability to undertakes, conducts and controls the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice settlement or defense of such claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay permit the amount of Indemnified Party to participate in such liability to settlement or defense through counsel chosen by the Indemnitee on demand orIndemnified Party, in provided that the case of any notice in which the amount fees and expenses of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee Indemnified Party's counsel shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations be borne by the 90th day after notice of such claim was given to the Indemnifying Indemnified Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11.
Appears in 1 contract
Procedures for Indemnification. (a) If a claim or demand is made against a Party to this Agreement (an "Indemnitee"), or an Indemnitee shall otherwise learn of an assertionassertion of a claim or demand, by any Person who is not a party to this Indemnification Agreement (or an Affiliate thereof) (a "Third Party Claim") as to which one or more parties a Party (collectively, the "Indemnifying Party") may be obligated to provide indemnification to such Indemnitee pursuant to this Indemnification Agreement, such Indemnitee will shall notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, provided however, that failure to give such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually and materially prejudiced as a result of such failure.
(b) The Indemnifying Party will have a period of 30 days after delivery of the notice required by Section 1.6(a) during which to respond to such notice. If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation elects to indemnify defend the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof)claim described on such notice, the Indemnifying Party will be entitled obligated to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will shall take all steps necessary in the defense or settlement thereof and shall at all times diligently pursue the resolution thereof. If the Indemnifying Party so elects to assume the defense of a Third Party Claim, the Indemnifying Party shall not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided provided, however, that, if in any the Indemnitee's reasonable judgment a conflict of interest exists in respect of such claimclaim or demand, or there exists for the Indemnitee a defense that is not available to the Indemnifying Party, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and and, in that event event, the reasonable fees fees, expenses, disbursements, and expenses related charges of each such separate counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence)expense, separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it the Indemnifying Party does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid)during such 30-day period. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and shall keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including including, without limitation, providing to the Indemnitee on request written updates and written summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense defense, negotiation or settlement thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify has assumed the Indemnitee for a Third Party Claim (subject to verification that defense of any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof)claim, the Indemnitee will agree to any settlement, compromise or discharge settlement of such Third Party Claim claim nevertheless will require the prior written consent of the Indemnitee, which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with consent will not be unreasonably withheld, unless such Third Party Claim and compromise or settlement unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Indemnification Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. The Indemnifying Party will have 30 days after the delivery of such notice required by this Section 1.6(d) during which to respond to such notice. If the Indemnifying Party does not dispute its liability to accepts (in writing) full responsibility for the claim described in such notice, such claim specified by the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnification Agreement and the Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claimclaim or does not respond within such 30-day period, as provided aboveor if the Indemnifying Party and the Indemnitee are unable to agree on a final determination of the amount of such claim within such 30-day period, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will be free to resolve such dispute in accordance with Section 14.11Article II hereof.
(e) After any final judgment or award shall have been rendered by a court, arbitration panel or administrative agency of competent jurisdiction and the expiration of the time in which to appeal therefrom, or a settlement shall have been consummated, or the Indemnitee and the Indemnifying Party shall have arrived at a mutually binding agreement with respect to a claim for Damages hereunder, the Indemnitee shall forward to the Indemnifying Party notice of any sums due and owing by the Indemnifying Party pursuant to this Indemnification Agreement with respect to such matter and the Indemnifying Party shall be required to pay all of the sums so due and owing to the Indemnitee by wire transfer of immediately available funds within ten Business Days after the date of such notice to an account designated in writing by the Indemnitee to the Indemnifying Party.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Amc Entertainment Inc)
Procedures for Indemnification. (a) If a claim or demand is made against an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, by any Person who is not a party to The Indemnified Party seeking indemnification under this Agreement shall promptly notify the party against whom indemnification is sought (or an Affiliate thereof) (a "Third Party Claim") as to which one or more parties (collectively, the "Indemnifying Party") of the assertion of any claim, or the commencement of any action, suit or proceeding by any Third Party, in respect of which indemnity may be obligated to provide indemnification pursuant to this Agreement, such Indemnitee sought hereunder and will notify give the Indemnifying Party in writingsuch information with respect thereto as the Indemnifying Party may reasonably request, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, that but failure to give such notification will notice shall not affect relieve the indemnification provided Indemnifying Party of any liability hereunder except to (unless the extent the Indemnifying Party has suffered material prejudice by such failure). The Indemnifying Party shall have been actually prejudiced as the right, but not the obligation, exercisable by written notice to the Indemnified Party within 30 days of receipt of notice from the Indemnified Party of the commencement of or assertion of any claim, action, suit or proceeding by a result Third Party in respect of which indemnity may be sought hereunder (a "Third-Party Claim"), to assume the defense and control the settlement of such failureThird-Party Claim that (i) involves (and continues to involve) solely money damages or (ii) involves (and continues to involve) claims for both money damages and equitable relief against the Indemnified Party that cannot be severed, where the claims for money damages are the primary claims asserted by the Third Party and the claims for equitable relief are incidental to the claims for money damages, and where the Indemnified Party reasonably determines (and continues to reasonably determine) that defense of the claim by the Indemnifying Party will not have a Material Adverse Effect on the Indemnified Party.
(b) If a Third Party Claim is made against an Indemnitee and the The Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify or the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with Indemnified Party, as the other terms hereof)case may be, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel(but not control), at its own expense (except as otherwise provided in the preceding sentence)expense, separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Third-Party Claim and keep that the Indemnitee fully informed of all developments relating to or other is defending, as provided in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party)this Agreement.
(c) If The Indemnifying Party, if it has assumed the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third defense of any Third-Party Claim (subject to verification that any losses or costs as provided in respect thereof constitute Damages and compliance with the other terms hereof)this Agreement, the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlementa settlement of, compromise or discharge (including the consent to entry of any judgment)judgment arising from, and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Third- Party Claim without the Indemnifying Indemnified Party's prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account of Damages unless such settlement or judgment relates solely to monetary damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. If the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made will pay in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreementfull. The Indemnifying Party shall pay not, without the amount of Indemnified Party's prior written consent, which consent shall not be unreasonably withheld, enter into any compromise or settlement that (i) commits the Indemnified Party to take, or to forbear to take, any action or (ii) does not provide for a complete release by such liability to the Indemnitee on demand or, in the case of any notice in which the amount Third Party of the claim (or Indemnified Party. The Indemnified Party shall have the sole and exclusive right to settle any portion thereof) is estimatedThird-Party Claim, on such later date when terms and conditions as it deems reasonably appropriate, to the amount extent such Third- Party Claim involves equitable or other nonmonetary relief against the Indemnified Party, and shall have the right to settle any Third-Party Claim involving money damages for which Seller has not assumed the defense pursuant to this Section 9.4 with the written consent of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11which consent shall not be unreasonably withheld or delayed.
Appears in 1 contract
Procedures for Indemnification. The indemnity given by each Party pursuant to Clauses 11.1 or 11.2 shall be subject to the following conditions:
11.3.1 the Party seeking indemnification (athe “Indemnified Party”) If shall promptly notify the other Party (the “Indemnifying Party”) in writing of a description of the applicable third party claim or demand is made against proceeding and the nature and amount of any Losses (an Indemnitee, “Indemnification Claim Notice”) in respect of which it intends to claim indemnification under this Clause 11 upon actual knowledge of any such claim or an Indemnitee shall otherwise learn of an assertion, by any Person who is not a party to this Agreement (or an Affiliate thereof) (a "Third Party Claim") as to which one or more parties (collectively, the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement, proceeding resulting in such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of such Third Party ClaimLosses; provided, however, that failure any delay to give such notification will notify shall not affect excuse any obligation of the indemnification provided hereunder Indemnifying Party except to the extent such delay materially prejudices the defense of such claim;
11.3.2 no admissions of liability or compromise or offer of settlement of any claim shall be made by the Indemnified Party without the prior written consent of the Indemnifying Party;
11.3.3 the Indemnifying Party shall have been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that full control over any losses claim, proceedings or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists settlement negotiations in respect of such claimwhich it is providing the indemnity, such Indemnitee shall have provided that the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Indemnified Party assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counselany such claim, proceedings, or settlement negotiations represented by its own counsel at its own expense cost and expense;
11.3.4 the Indemnified Party shall cooperate as may be reasonably requested by the Indemnifying Party (except as and at the Indemnifying Party’s expense) in order to ensure the proper and adequate defense of any action, claim or liability covered by this indemnification; and
11.3.5 the Indemnifying Party may not settle or otherwise provided in dispose of any claim without the preceding sentence), separate from prior written consent of the counsel employed Indemnified Party unless such settlement includes only the payment of monetary damages (which are fully paid by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it ), does not expressly elect to assume impose any injunctive or equitable relief upon the defense thereof (including acknowledging its indemnification obligation as aforesaid). If Indemnified Party, does not require any admission or acknowledgment of liability or fault of the Indemnifying Indemnified Party assumes and contains an unconditional release of the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Indemnified Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. If the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11.
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Procedures for Indemnification. (a) If Whenever a claim or demand is made against an IndemniteeClaim shall arise for indemnification under Section 9.02 (other than under Section 9.02(b)(iv)), or an Indemnitee shall otherwise learn of an assertion, by any the Person who is not a party entitled to this Agreement indemnification (or an Affiliate thereof) (a the "Third Party ClaimINDEMNIFIED PARTY") as to shall promptly notify the Party from which one or more parties indemnification is sought (collectivelythe "INDEMNIFYING PARTY") of such Claim and, when known, the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement, such Indemnitee will notify facts constituting the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware basis of such Third Party Claim; provided, however, that failure to give such notification will not affect in the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense event of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee Claim for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence), separate indemnification resulting from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party a Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend by a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof)third party, the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Indemnified Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any give such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee thereof to the Indemnifying Party from whom such indemnification not later than 10 Business Days prior to the time any response to the third party Claim is sought. The required, if possible, and in any event within 15 Business Days following receipt of notice thereof (provided, that failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from of any liability which it may have to such Indemnitee under this Agreementthe Indemnified Party, except to the extent that the Indemnifying Party shall have has been actually and materially prejudiced by such failure). If Following receipt of notice of any such third party Claim, and unless counsel to the Indemnified Party shall have reasonably determined in good faith that the assumption of such defense by the Indemnifying Party does would be inappropriate due to a conflict of interest, the Indemnifying Party shall have the option, at its cost and expense, to assume the defense of such matter and to retain counsel (not dispute its liability reasonably objected to by the Indemnified Party) to defend any such claim or legal proceeding, and the Indemnifying Party shall not be liable to the Indemnitee Indemnified Party for any fees of other counsel or any other expenses (except as expressly provided to the contrary herein) with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice defense of such claimClaim, other than reasonable fees and expenses of counsel employed by the claim shall be conclusively deemed a liability of the Indemnifying Indemnified Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of for any notice in period during which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability not assumed the defense thereof. The Indemnified Party shall have the option of joining the defense of such Claim (which shall be at the sole cost and expense of the Indemnified Party) with counsel not reasonably objected to by the Indemnifying Party and counsel for each party shall, to the extent consistent with such counsel's professional responsibilities, cooperate with the other party and any counsel designated by that party. In effecting the settlement or compromise of, or consenting to the entry of any judgment with respect to, any such Claim, the Indemnifying Party, or the Indemnified Party, as the case may be, shall act in good faith, shall consult with the other party and shall enter into only such settlement or compromise or consent to the entry of any judgment as the other party shall consent, such consent not to be unreasonably withheld, conditioned or delayed. An Indemnifying Party shall not be liable for any settlement, compromise or judgment not made in accordance with the preceding sentence.
(b) Buyer shall promptly and diligently defend, prosecute or settle the matters described in Section 9.02(b)(iv) (including the defense of any members of the Seller Indemnified Group that are defendants or respondents with respect to such claimmatters). If Buyer's counsel shall have advised Buyer in writing, as provided abovein which case Buyer shall deliver a copy to the Indemnified Party, or if the Indemnified Party reasonably believes, that there is a conflict of interest that could make it inappropriate under applicable standards of professional conduct to have common counsel, the Indemnifying Indemnified Party may retain its own counsel with respect to such defense and Buyer shall pay the Indemnitee reasonable attorneys' fees and expenses of counsel for such Indemnified Party. Buyer shall proceed obtain the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, delayed or conditioned, before entering into or making (or allowing the Companies to enter into or make) any settlement or compromise of the matters described in good faith Section 9.02(b)(iv) if (i) such settlement or compromise does not include a full release of the Indemnified Party, (ii) such settlement or compromise includes any non-monetary remedy binding on the Indemnified Party or (iii) the Indemnified Party reasonably believes that Buyer will not have the ability to negotiate a resolution satisfy fully its obligations pursuant to Section 9.02(b)(iv) at the time of such dispute andsettlement or compromise.
(c) After the Closing Date, if not resolved through negotiations by Seller and Buyer shall grant each other (or their respective designees), and Buyer shall cause the 90th day after notice Companies to grant to Seller (or its designees), access at all reasonable times to all of such claim was given the information, books and records relating to the Indemnifying PartyCompanies in its possession, and shall afford such party the Indemnifying Party right (at such party's expense) to take extracts therefrom and to make copies thereof, to the Indemnitee will resolve extent reasonably necessary to implement the provisions of, or to investigate or defend any Claims arising under, this Agreement. Further, after the Closing Date, Buyer shall cause the Companies to grant to Seller (or its designees) the access and right to take extracts and make copies described in the preceding sentence for such dispute in accordance with Section 14.11other purposes as Seller may reasonably request.
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Procedures for Indemnification. (a) If Whenever a claim Claim shall arise for indemnification resulting from or demand is made against an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, in connection with a Claim by any Person who is not a third party to this Agreement (or an Affiliate thereof) (a "Third “Third-Party Claim") as to which one or more parties (collectively”), the "Person entitled to indemnification (the “Indemnified Party”) shall promptly notify the Party from which indemnification is sought (the “Indemnifying Party"”) may be obligated to provide indemnification pursuant to this Agreement, such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim and, when known, the facts constituting the basis of such Claim; provided, however, that failure to give such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from of any liability which it may have to such Indemnitee under this Agreementthe Indemnified Party, except to the extent that the Indemnifying Party shall have has been actually prejudiced by such failure. If Following receipt of notice of any such Third-Party Claim, and unless the assumption of such defense by the Indemnifying Party does would be inappropriate due to a conflict of interest, the Indemnifying Party shall have the option, at its cost and expense, to assume the defense of such Third-Party Claim and to retain counsel (not dispute its liability reasonably objected to by the Indemnified Party) to defend any such claim or legal proceeding, and the Indemnifying Party shall not be liable to the Indemnitee Indemnified Party for any fees of other counsel or any other expenses (except as expressly provided to the contrary herein) with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice defense of such claimClaim, other than reasonable fees and expenses of counsel employed by the claim shall be conclusively deemed a liability of the Indemnifying Indemnified Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of for any notice in period during which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to not assumed the defense thereof. In the defense of such claim, as provided aboveClaim, the Indemnifying Party and the Indemnitee shall proceed act in good faith and conduct the defense actively and diligently, and in the event the Indemnifying Party is not complying with the foregoing, the Indemnified Party shall have the right to negotiate a resolution assume the defense of such dispute and, if Claim. The Indemnified Party shall have the option of joining the defense of such Claim (which shall be at the sole cost and expense of the Indemnified Party) with counsel not resolved through negotiations reasonably objected to by the 90th day after notice Indemnifying Party and counsel for each party shall, to the extent consistent with such counsel’s professional responsibilities, cooperate with the other party and any counsel designated by that party. In effecting the settlement or compromise of, or consenting to the entry of any judgment with respect to, any such claim was given Third-Party Claim with respect to which the Indemnifying Party has assumed the defense in accordance with this Section 11.5, the Indemnifying Party, or the Indemnified Party, as the case may be, shall act in good faith, shall consult with the other party and shall enter into only such settlement or compromise or consent to the entry of any judgment as the other party shall consent, such consent not to be unreasonably withheld, conditioned or delayed; provided that no such consent shall be required if (a) there is a full release of the Indemnified Party and (b) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party. An Indemnifying Party and shall not be liable for any settlement, compromise or judgment entered into by the Indemnitee will resolve such dispute Indemnified Party not made in accordance with the preceding sentence. Notwithstanding the rights of Sellers under this Section 14.1111.5 with respect to the defense of claims, the Buyer shall control any environmental remediation performed at the Channelview Facility, and shall have the right to take any action required, in Buyer’s reasonable judgment, by prudent environmental management and plant operation. Notwithstanding anything to the contrary in this Section 11.5, the Parties shall jointly control any Tax Proceeding involving Taxes attributable to a Straddle Period.
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Procedures for Indemnification. Except as otherwise provided in Article X, which shall be the exclusive provision governing Contests and Tax Claims:
(a) If a any suit, action, proceeding, investigation, claim or demand is made against an Indemnitee, shall be brought or an Indemnitee shall otherwise learn of an assertion, asserted by any third Person who is not a party to this Agreement (or an Affiliate thereofincluding any Governmental Body) (a "“Third Party Claim"”) as to against any Person in respect of which one or more parties (collectively, the "Indemnifying Party") indemnity may be obligated to provide indemnification sought pursuant to this AgreementSection 9.1 or Section 9.2, such Indemnitee will Person (the “Indemnified Person”) shall notify the Person against whom such indemnity may be sought (the “Indemnifying Party Person”) in writing, and writing in reasonable detail, detail of the Third Party Claim reasonably promptly within 30 days after becoming aware receipt by such Indemnified Person of formal notice of such Third Party Claim, and, thereafter, such Indemnified Person shall promptly forward to the Indemnifying Person a copy of all notices and documents (including court papers) received by the Indemnified Person pursuant to the Third Party Claim; provided, however, that the failure to give such notification will within 30 days after such receipt of formal notice and the failure to forward a copy of such notices and documents shall not affect the indemnification provided hereunder obligations of the Indemnifying Person or the rights of the Indemnified Person except to the extent the Indemnifying Party shall have Person has actually been actually prejudiced as a result of such failure.
(b) If Upon the receipt by the Indemnifying Person of notice of a Third Party Claim is made against an Indemnitee and Claim, the Indemnifying Person may electto assume the defense of such Third Party unconditionally Claim by promptly delivering a notice to the Indemnified Person of the assumption of such defense and irrevocably acknowledges in writing its obligation to indemnify retain defense counsel to represent the Indemnitee therefor Indemnified Person; provided, that if (subject to verification i) the Third Party Claim primarily seeks injunctive relief that any losses would materially and adversely affect the Indemnified Party or costs in respect thereof constitute Damages and compliance with (ii) the other terms hereof)Loss involves a claim of criminal conduct against the Indemnified Party, the Indemnifying Party will be entitled to may not assume the defense thereof (at the expense of any such claim. If the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party Person so elect elects to assume the defense of a Third Party Claim, then (i) the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee shall have the right to Indemnified Person may participate in the such defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence)such Indemnified Person’s expense, separate from the reasonably acceptable counsel employed by the Indemnifying Party. The Person, but so long as it diligently pursues such defense, the Indemnifying Party Person shall control such defense, shall be empowered to make any settlement with respect to such Third Party Claim in the manner set forth in Section 9.3(c) and shall not be liable to such Indemnified Person for the fees and expenses of the separate counsel employed retained by such Indemnified Person, and (ii) the Indemnitee for Indemnified Person and any period during which other Indemnified Persons will reasonably cooperate with the Indemnifying Party has failed to assume Person in such defense, including by providing, upon the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If reasonable request of the Indemnifying Party assumes Person, books, records and all other reasonably necessary items and by making available employees on a mutually convenient basis.
(c) No Indemnifying Person shall, without the defense prior written consent of the Indemnified Person, which shall not unreasonably be withheld, effect any settlement of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to pending or in connection with such threatened Third Party Claim in respect of which such Indemnified Person is a party, or is subject, and keep in respect of which indemnity is sought hereunder by such Indemnified Person, if such settlement provides for any relief other than the Indemnitee fully informed payment of all developments relating money damages for which such Indemnified Person is indemnified in full.
(d) The Indemnifying Person shall, at any time, be entitled to or in connection with such Third Party Claim (including providing elect to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to no longer defend a Third Party Claim; provided, all that the Indemnitees Indemnifying Person shall reasonably cooperate with the Indemnifying Party assist in transitioning the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which back to the Indemnified Person and that the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party Person shall not be entitled to pay the full amount make a claim for reimbursement of Damages expenses incurred in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members its assumption of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with defense of such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(de) Any In the event any Indemnified Person should have a claim on account of Damages which against the Indemnifying Person under this Article IX that does not involve a Third Party Claim being asserted against such Indemnified Person, the Indemnified Person shall be asserted by reasonably prompt deliver written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. If the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, specifying with particularity and detail the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount nature of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determinedclaim. If the Indemnifying Party has timely disputed its liability with respect Person objects to such claim, as provided aboveclaim in a timely manner, the Indemnifying Party Indemnified Person and the Indemnitee Indemnifying Person shall proceed in good faith to negotiate a resolution of resolve such dispute and, if not resolved through negotiations by upon the 90th day after notice of failure to resolve such claim was given to the Indemnifying Partydispute, the Indemnifying Party and the Indemnitee will resolve such dispute parties may pursue remedies in accordance with Section 14.1112.1.
(f) Notwithstanding anything herein to the contrary, no party to this Agreement shall be obligated to make indemnification payments under Section 9.1(a)(i), 9.1(a)(ii), 9.1(a)(iii), 9.1(a)(iv), 9.1(a)(v) or 9.2(a)(i) unless the Indemnified Person shall have delivered to the Indemnifying Person written notification pursuant to Sections 9.1 and 9.2, on or before:
(i) October 1, 2007, with respect to any such indemnification claim under (A) Section 9.1(a)(i), 9.1(a)(ii) or 9.2(a)(i), as the case may be, that arises from a breach of any representation or warranty set forth in this Agreement, except for those set forth in Sections 3.1, 3.2(a), 3.3 and 4.4(a), and (B) Section 9.1(a)(iii) or 9.2(a)(ii), as the case may be, that arises from a breach of any covenants or other agreements of the Sellers or the Buyer that were to be performed prior to the Closing Date;
(ii) the date of expiration of the applicable statute of limitations with respect to any such indemnification claim under Section 9.1(a)(iv) for Income Taxes relating to periods prior to the Closing;
(iii) at any time with respect to any such indemnification claim under Section 9.1(a)(ii) that arises from a breach of any representation or warranty set forth in Section 3.1, 3.2(a), 3.3 or 4.4(a); and
(iv) the fifth anniversary of the Closing Date with respect to any such indemnification claim under Section 9.1(a)(v) that arises from any of the Excluded Matters.
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Procedures for Indemnification. (a) If Any Person making a claim or demand is made against an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, by any Person who is not a party to for indemnification under this Agreement (an "Indemnified Person") shall notify the party against whom indemnification is sought (an "Indemnifying Party") of the claim in writing (such written notice, an "Indemnification Notice") promptly after receiving notice of any action, lawsuit, proceeding, investigation, demand or an Affiliate thereof) other claim against the Indemnified Person by a third party (a "Third Party Claim") as ). Each such Indemnification Notice shall describe in reasonable detail the applicable Third Party Claim, including the facts giving rise to which one or more parties (collectivelysuch claim for indemnification hereunder, the "Indemnifying Party"amount or method of computation of the amount of such claim (if known) may be obligated to provide indemnification pursuant to this Agreement, and such Indemnitee will notify other information with respect thereto as the Indemnifying Party may reasonably request; provided that the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party of its obligations
(b) Any Indemnifying Party shall be entitled to participate in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware defense of such Third Party Claim; providedClaim at such Indemnifying Party’s expense, however, that failure to give such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party and at its option shall have been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnifying Party will be entitled to assume the defense thereof by appointing a reputable counsel to be the lead counsel in connection with such defense; provided that the Indemnified Person shall be entitled to participate in the defense of such Third Party Claim and to employ counsel of its choice for such purpose (at provided that the expense fees and expenses of such separate counsel shall be borne by the Indemnified Person and shall not be recoverable from such Indemnifying Party) with Party under this Article). Notwithstanding the foregoing, if the Indemnified Person shall have determined in good faith and upon advice of counsel selected by that an actual conflict of interest makes representation of the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred Indemnified Person by the Indemnitee in connection with same counsel inappropriate, then the defense thereof; provided thatIndemnified Person may, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory upon notice to the Indemnifying Party) , engage separate counsel, and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such separate counsel shall be paid borne by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such extent the Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party)is indemnifiable hereunder.
(c) If Upon assumption of the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that defense of any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which by the Indemnifying Party may recommend and which by its terms obligates Party, the Indemnifying Party Indemnified Person will not pay, or permit to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members be paid, any part of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without unless the Indemnitee's prior written consentIndemnifying Party consents in writing to such payment. Notwithstanding anything to the contrary herein, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment)settle, and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability Liability with respect to, or settle, compromise or discharge, such any Third Party Claim without the Indemnifying Party's prior written consent of the Indemnified Person (which consent shall not be unreasonably withheld, conditioned or delayed), unless the relief consists solely of (i) money damages (all of which the Indemnifying Party shall pay), and (ii) includes a provision whereby the plaintiff or claimant in the matter releases the Indemnified Person from all Liability with respect thereto; provided, however, that if the Indemnified Person fails to consent to such settlement or compromise and such settlement or compromise does not include injunctive relief, the Liability of the Indemnifying Party with respect to such Third Party Claim under this Agreement shall be limited to the amount that would have otherwise been payable had the Indemnifying Party entered into such settlement or compromise.
(d) Each Indemnified Party shall use commercially reasonable efforts to mitigate and minimize its Losses that are indemnifiable under this Agreement. In all cases, the Indemnified Person shall provide its reasonable cooperation with the Indemnifying Party in defense of claims or litigation relating to Third Party Claims, including by making employees, information and documentation reasonably available. If the Indemnifying Party shall not reasonably promptly assume the defense of any such Third Party Claim, or fails to prosecute or withdraws from the defense of any such Third Party Claim, the Indemnified Person may defend against such matter in a manner consistent with the above provisions regarding conduct of the defense by the Indemnifying Party; provided that the Indemnified Person may not settle any such matter without the written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed).
(e) Any Indemnified Person making a claim on account of Damages which against any Indemnifying Party hereunder that does not involve a Third Party Claim shall be asserted by reasonably prompt written deliver notice given by the Indemnitee of such claim promptly to the Indemnifying Party from whom such Party, describing in reasonable detail the facts giving rise to any claim for indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. If the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claimhereunder, the claim shall be conclusively deemed a liability amount or method of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount computation of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (if
(f) Subject to this Article, after any final decision, judgment or such portion thereof) becomes finally determined. If award shall have been rendered by a Governmental Authority with competent jurisdiction (and a resolution of any appeal therefrom and the expiration of the time in which to appeal therefrom), or a settlement shall have been consummated, or the Indemnified Person and the Indemnifying Party has timely disputed its liability shall have arrived at a mutually binding agreement, in each case, with respect to such claima claim hereunder (i) if the Indemnified Person is a Purchaser Indemnified Person, as provided above, the Indemnifying Party and the Indemnitee Seller shall proceed in good faith promptly pay to negotiate a resolution Purchaser (payable by wire transfer of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute immediately available U.S. funds in accordance with Section 14.11the written payment instructions furnished by Purchaser) any sums due and owing in accordance with this Article, and (ii) if the Indemnified Person is a Seller Indemnified Person, Purchaser or Purchaser's Parent shall pay or cause to be paid all sums due and owing to the Seller Indemnified Person (payable by wire transfer of immediately available U.S. funds in accordance with the written payment instructions furnished by Seller) any sums due and owning in accordance with this Article.
Appears in 1 contract
Procedures for Indemnification. (a) If Promptly after receipt by a claim Tejas Indemnified Party or demand is made against an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, by any Person who is not a party to this Agreement Company Indemnified Party (or an Affiliate thereof) (a "Third Party Claim") as to which one or more parties (collectivelysuch party, the "Indemnifying “Indemnified Party"”) may be obligated of written notice of the assertion or the commencement of any proceeding by a third-party with respect to provide any matter referred to in Sections 8.02 (other than excepted matters) or 8.03, as applicable, the Indemnified Party shall give written notice thereof to the party(ies) responsible for indemnification pursuant to this AgreementSections 8.02 or 8.03 hereof (the “Indemnifying Party”), such Indemnitee will notify and thereafter shall keep the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claiminformed with respect thereto; provided, however, that failure of the Indemnified Party to give such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced notice as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party herein shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreementof their obligations hereunder, except to the extent that the Indemnifying Party are prejudiced thereby. A claim for indemnification for any matter not involving a third-party proceeding may be asserted by notice to the Indemnifying Party and shall be paid promptly after such notice.
(b) If the facts pertaining to a Loss arise out of the claim of any third party, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Indemnifying Party may assume the defense or the prosecution thereof by prompt written notice to the Indemnified Party, including the employment of counsel or accountants, at its sole cost and expense. In connection therewith, the Indemnifying Party shall acknowledge that such claim is the proper subject of indemnification under Section 8.02 or 8.02, as applicable. The Indemnified Party shall have been actually prejudiced the right to employ counsel separate from counsel employed by the Indemnifying Party in any such failureaction and to participate therein, but the fees and expense of such counsel employed by the Indemnified Party shall be at its sole cost and expense. If Neither the Indemnifying Party nor the Indemnified Party shall be liable for any settlement of any such claim effected without their respective prior written consent, which shall not be unreasonably withheld; provided that if the Indemnifying Party does not dispute its liability to assume the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration defense or prosecution of a claim as provided above without thirty (30-calendar-day period following ) days after notice thereof from the Indemnified Party, the Indemnified Party may settle such claim without the Indemnifying Party's receipt of notice of ’s consent. Whether or not the Indemnifying Party chooses to so defend or prosecute such claim, all the claim parties hereto shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, cooperate in the case of any notice in which the amount of the claim (defense or any portion thereof) is estimatedprosecution thereof and shall furnish such records, on information and testimony, and attend such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claimconferences, discovery proceedings, hearings, trails and appeals, as provided above, the Indemnifying Party and the Indemnitee shall proceed may be reasonably requested in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11connection therewith.
Appears in 1 contract
Sources: Purchase Agreement (Tejas Inc)
Procedures for Indemnification. (a) If a claim or demand is made against an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, by any Person person who is not a party to this Agreement (or an Affiliate thereof) (a "Third Party Claim") as to which one or more parties (collectively, the "Indemnifying Party") may be obligated such Indemnitee is entitled to provide indemnification pursuant to this Agreement, such Indemnitee will shall notify the Indemnifying Party Planet in writing, and in reasonable detail, of the Third Party Claim reasonably promptly (and in any event within 20 business days) after becoming aware receipt by such Indemnitee of such written notice of the Third Party Claim; provided, however, that failure to give such notification will within such 20 business day period shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party to which Planet shall have been actually prejudiced as a result of such failurefailure (except that Planet shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice). Thereafter, the Indemnitee shall deliver to Planet promptly (and in any event within 20 business days) after the Indemnitee's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitee relating to the Third Party Claim.
(b) If a Third Party Claim is made against an Indemnitee Indemnitee, Planet shall be entitled to participate in the defense thereof and, if it so chooses and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof)therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and Planet; provided that such counsel is not reasonably satisfactory objected to by the Indemnitee. Should the Indemnifying Party Planet so elect to assume the defense of a Third Party Claim, the Indemnifying Party will Planet shall not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party Planet assumes the defense of any Third Party Claimsuch defense, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence)expense, separate from the counsel employed by the Indemnifying PartyPlanet, it being understood that Planet shall control such defense. The Indemnifying Party Planet shall be liable for the fees and expenses of counsel employed by the Indemnitee (i) for any period during which the Indemnifying Party Planet has failed to assume the defense thereof (other than during the 20 business day period prior to the time the Indemnitee shall have given notice of the Third Party Claim as provided above) or if (ii) in the event the Indemnitee reasonably determines, based on the advice of its counsel that there shall exist a conflict of interest between the Indemnitee and Planet or that there are defenses available to the Indemnitee that are not available to Planet, the effect of which shall be to make it does not expressly elect impractical for the Indemnitee and Planet to be jointly represented by the same counsel, in which case Planet shall be liable for the fees and expenses of one counsel for all Indemnitees in any single or series of related Actions. If Planet so elects to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party Planet in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party)or prosecution thereof.
(c) If the Indemnifying Party unconditionally and irrevocably Planet acknowledges in writing its obligation to indemnify the Indemnitee liability for indemnification of a Third Party Claim, then in no event will the Indemnitee admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim (subject without Planet's prior written consent; provided, however, that the Indemnitee shall have the right to verification that any losses settle, compromise or costs discharge such Third Party Claim without the consent of Planet if the Indemnitee releases Planet from its indemnification obligations hereunder with respect to such Third Party Claim and such settlement, compromise or discharge would not otherwise adversely affect Planet. If Planet acknowledges in respect thereof constitute Damages and compliance with the other terms hereof)writing liability for indemnification of a Third Party Claim, the Indemnitee will agree to any settlement, compromise or discharge of such a Third Party Claim which the Indemnifying Party that Planet may recommend and which that by its terms (i) obligates the Indemnifying Party Planet to pay the full amount of Damages the liability in connection with such Third Party Claim, (ii) releases the Indemnitee completely in connection with such Third Party Claim and unconditionally and irrevocably releases (iii) would not otherwise adversely affect the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, Indemnitee; provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and that the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in and may assume the reasonable opinion defense of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without if the Indemnifying PartyIndemnitee agrees (A) that Planet's prior written consent (which consent indemnification obligation with respect to such Third Party Claim shall not exceed the amount that would have been required to be unreasonably withheldpaid by or on behalf of Planet in connection with such settlement, compromise or discharge and (B) to assume all costs and expenses thereafter incurred in connection with the defense of such Third Party Claim (other than those contemplated by subclause (A) herein above).
(d) Any claim on account Notwithstanding the foregoing, Planet shall not be entitled to assume the defense of Damages which does not involve a any Third Party Claim (and shall be asserted by reasonably prompt written notice given liable for the fees and expenses of counsel incurred by the Indemnitee to in defending such Third Party Claim) if the Indemnifying Third Party from whom such indemnification is sought. The failure by any Claim seeks an order, injunction or other equitable relief or relief other than money damages against the Indemnitee so to notify which the Indemnifying Party shall Indemnitee reasonably determines, based on the advice of its counsel, cannot relieve the Indemnifying Party be separated from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failurerelated claim for money damages. If such equitable or other relief portion of the Indemnifying Third Party does not dispute its liability to the Indemnitee with respect to Claim can be so separated from the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claimfor money damages, the claim Planet shall be conclusively deemed a liability entitled to assume the defense of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability portion relating to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11money damages.
Appears in 1 contract
Sources: Agreement and Plan of Distribution (Internet Law Library Inc)
Procedures for Indemnification. (a) If Whenever a claim or demand is made against an Indemniteeshall arise for indemnification under this Article 11, or an Indemnitee shall except as otherwise learn of an assertion, by any Person who is not a party to this Agreement (or an Affiliate thereof) (a "Third Party Claim") as to which one or more parties (collectivelyprovided in Section 11.4, the "parties shall proceed as provided as set forth in this Section 11.3. The party entitled to indemnification (the “Indemnified Party”) shall promptly notify the party from which indemnification is sought (the “Indemnifying Party"”) may be obligated to provide indemnification pursuant to this Agreement, such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claimclaim and, when known, the facts constituting the basis for such claim; provided, however, that failure to in the event of any claim for indemnification hereunder resulting from or in connection with any claim or Legal Proceeding by a third party (a “Third Party Claim”), the Indemnified Party shall give such notification will not affect the indemnification provided hereunder except notice thereof to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure.
(b) If a not later than ten Business Days prior to the time any response to the Third Party Claim is made against an Indemnitee required, and in any event within five Business Days following receipt of notice thereof. In the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that event of any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a such Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with may, at its sole cost and expense, assume the defense thereof; provided thatof the Third Party Claim by written notice within 30 calendar days, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate using counsel (which shall be that is reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Indemnified Party. If the Indemnifying The failure of an Indemnified Party assumes the defense of any Third Party Claim, the Indemnitee to give timely notice shall have not affect the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If the Indemnifying Indemnified Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party demonstrates actual prejudice. If an Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnifying Party shall have been actually prejudiced be entitled to take all steps necessary in the defense thereof, including any settlement; provided, however, that the Indemnified Party may, at its own expense, participate in any Legal Proceeding with respect to such Third Party Claim with counsel of its choice without any right of control thereof. The Indemnifying Party, if it has assumed the defense of any Third Party Claim as provided herein, shall not, however: (i) consent to, or enter into, any compromise or settlement of the Third Party Claim which commits the Indemnified Party to take, or to forbear from taking, any action or does not provide for a full and complete written release by such failurethird party of the Indemnified Party, or (ii) consent to the entry of any judgment in any Legal Proceeding that does not relate solely to monetary damages arising from the Third Party Claim, in any such case, without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed. The Indemnifying Party and the Indemnified Party shall cooperate fully in all aspects of any investigation, defense, pre- trial activities, trial, compromise, settlement or discharge of any Third Party Claim in respect of which indemnity is sought pursuant to this Article 11, including, but not limited to, by providing the other party with reasonable access to employees and officers (including as witnesses) and other information. So long as the Indemnifying Party is in good faith defending any Third Party Claim, the Indemnified Party shall not compromise or settle such Third Party Claim without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not dispute its liability to assume the Indemnitee defense of any Third Party Claim in accordance with respect to this Section 11.3, the claim made Indemnified Party may defend against such Third Party Claim in such notice by notice to the Indemnitee manner as it may deem appropriate, including settling such claim or litigation (after giving prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of written notice of such claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability same to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and obtaining the Indemnitee shall proceed in good faith to negotiate a resolution prior written consent of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed) on such terms as the Indemnified Party may reasonably deem appropriate, and the Indemnifying Party and shall promptly indemnify the Indemnitee will resolve such dispute Indemnified Party in accordance with Section 14.11the provisions of this Article 11.
Appears in 1 contract
Sources: Stock Purchase Agreement
Procedures for Indemnification. (a) An Indemnitee shall give notice of any matter that such Indemnitee has determined has given, or would reasonably be expected to give, rise to a right of indemnification under this Agreement (other than a Third-Party Claim which is governed by Section 7.4(b)) to the Party that is or may be required pursuant to this Agreement to make such indemnification (the “Indemnifying Party”) promptly (and in any event within thirty (30) days) after making such a determination. Such notice will state the amount of the Loss claimed, if known, and method of computation thereof, and contain a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed by such Indemnitee; provided, that the failure to provide such notice will not release the Indemnifying Party from any of its obligations except and solely to the extent the Indemnifying Party will have been prejudiced as a result of such failure.
(b) If a claim or demand is made against an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, by any Person who is not a party to this Agreement (or an Affiliate thereof) Third Party (a "Third “Third-Party Claim"”) as to which one such Indemnitee is, or more parties (collectivelyreasonably expects to be, the "Indemnifying Party") may be obligated entitled to provide indemnification pursuant to this Agreement, such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, of the Third Third-Party Claim reasonably promptly (and in any event within thirty (30) days) after becoming aware receipt by such Indemnitee of such Third notice of the Third-Party Claim; provided, however, that the failure to give provide notice of any such notification Third-Party Claim will not affect release the indemnification provided hereunder Indemnifying Party from any of its obligations except and solely to the extent the Indemnifying Party shall will have been actually prejudiced as a result of such failure.
(bc) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the An Indemnifying Party will be entitled (but will not be required) to assume control the defense thereof defense, compromise and settlement of any Third-Party Claim, at such Indemnifying Party’s own cost and expense and by such Indemnifying Party’s own counsel, which counsel must be reasonably acceptable to the Indemnitee, if it gives written notice of its intention to do so (at including a statement that the expense Indemnitee is entitled to indemnification under this Article VII) to the applicable Indemnitee within thirty (30) days after the receipt of notice from such Indemnitee of the Third-Party Claim (failure of the Indemnifying PartyParty to respond within such thirty (30) with counsel selected day period will be deemed to be an election by the Indemnifying Party not to control the defense, compromise and settlement of such Third-Party Claim). After a notice from an Indemnifying Table of Contents Party to an Indemnitee of its election to control the defense, compromise and settlement of a Third-Party Claim, such Indemnitee will have the right to employ separate counsel and to participate in (but not control) the defense, compromise and settlement thereof, at its own expense and, in any event, will reasonably satisfactory to the Indemnitee. Should cooperate with the Indemnifying Party so elect in such defense, compromise and settlement and use its reasonable best efforts to assume make available to the Indemnifying Party all witnesses and information in such Indemnitee’s possession or under such Indemnitee’s control relating thereto as are reasonably required by the Indemnifying Party; provided, that the Indemnitee shall not be required to disclose any information if such disclosure would be reasonably likely to: (w) contain information that in the reasonable, good faith judgment of the Indemnitee is competitively sensitive; (x) jeopardize any attorney-client or other legal privilege or the protections of the work product doctrine; (y) contravene any applicable Laws, fiduciary duty or Contract to which any Indemnitee is a party; or (z) expose the Indemnitee to risk of liability for disclosure of sensitive or personal information; provided, that, in any such case, the Indemnitee shall provide such information in redacted form as necessary to preserve such privilege or protections or comply with such Law or Contract or otherwise make appropriate substitute disclosure arrangements, to the extent practicable.
(d) Notwithstanding anything to the contrary in this Section 7.4, in the event that (i) an Indemnifying Party elects not to control the defense, compromise and settlement of a Third-Party Claim, (ii) there exists a conflict of interest or potential conflict of interest between the Indemnifying Party and the Indemnitee, (iii) any Third-Party Claim seeks a Governmental Order, injunction or other equitable relief or relief for other than money damages against the Indemnitee, (iv) the Indemnitee’s exposure to Liability in connection with such Third-Party Claim is reasonably expected to exceed the Indemnifying Party’s exposure in respect of such Third-Party Claim taking into account the indemnification obligations hereunder, or (v) the Person making such Third-Party Claim is a Governmental Authority with regulatory authority over the Indemnitee or any of its material Assets, such Indemnitee will be entitled to control the defense, compromise and settlement of such Third-Party Claim, at the Indemnifying Party’s expense, with one (1) counsel (and any applicable local counsel) of such Indemnitee’s choosing (such counsel to be reasonably acceptable to the Indemnifying Party). If the Indemnitee is conducting the defense of a Third against any such Third-Party Claim, the Indemnifying Party will not be liable reasonably cooperate with the Indemnitee in such defense and use its reasonable best efforts to make available to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee all witnesses and information in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If ’s possession or under such Indemnifying Party’s control relating thereto as are reasonably required by the Indemnitee; provided, that the Indemnifying Party assumes shall not be required to disclose any information if such disclosure would be reasonably likely to: (w) contain information that in the defense reasonable, good faith judgment of the Indemnifying Party is competitively sensitive; (x) jeopardize any Third attorney-client or other legal privilege or the protections of the work product doctrine; (y) contravene any applicable Laws, fiduciary duty or Contract to which the Indemnifying Party is a party; or (z) expose the Indemnifying Party to risk of liability for disclosure of sensitive or personal information; provided, that, in any such case, the Indemnifying Party shall provide such information in redacted form as necessary to preserve such privilege or protections or comply with such Law or Contract or otherwise make appropriate substitute disclosure arrangements, to the extent practicable.
(e) Unless the Indemnifying Party has failed to control the defense, compromise and settlement of the Third-Party Claim in accordance with the terms of this Table of Contents Agreement and subject to Section 7.4(f), no Indemnitee may settle or compromise any Third-Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheld, conditioned or delayed). If an Indemnifying Party has failed to control the defense, compromise and settlement of the Third-Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counselcontest, at its own expense (except as settle or otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense dispose of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, but will afford the Indemnifying Party shall not consent an opportunity to participate in such defense, at its cost and expense, and will consult with the Indemnifying Party prior to settling or otherwise disposing of any settlementof the same.
(f) In the case of a Third-Party Claim, compromise or discharge (including the no Indemnifying Party will consent to entry of any judgment), and the Indemnitee may refuse to agree to judgment or enter into any such settlement, compromise or discharge that, in the reasonable opinion settlement of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Third-Party Claim without the consent of the Indemnitee if the effect thereof is to permit any injunction, declaratory judgment, other adverse Governmental Order or non-monetary relief, or monetary relief for which the Indemnitee is not fully indemnified by the Indemnifying Party's prior written consent (which consent shall , to be entered, directly or indirectly, against any Indemnitee, does not be unreasonably withheld)unconditionally release the Indemnitee from all Liabilities with respect to such Third-Party Claim or includes an admission of guilt, wrongdoing or misconduct on behalf of the Indemnitee.
(dg) Any claim on account Absent fraud by an Indemnifying Party, and other than as provided in Section 10.8, the indemnification provisions of Damages which does not involve a Third Party Claim shall Section 5.5 and this Article VII will be asserted by reasonably prompt written notice given by the sole and exclusive remedy of an Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by for any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party monetary or compensatory damages or Losses resulting from any liability which it may have to such Indemnitee under breach of this Agreement, except to the extent that the Indemnifying Party shall and each Indemnitee expressly waives and relinquishes all rights, claims or remedies such Person may have been actually prejudiced by such failure. If the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the foregoing other than under Section 5.5 and this Article VII against any Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11.
Appears in 1 contract
Sources: Reorganization Agreement (Yahoo Inc)
Procedures for Indemnification. (a) If a claim or demand is made against an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, by any Person who is not a party to The Indemnified Party seeking indemnification under this Agreement shall promptly notify the party against whom indemnification is sought (or an Affiliate thereof) (a "Third Party Claim") as to which one or more parties (collectively, the "Indemnifying Party") of the assertion of any claim, or the commencement of any action, suit or proceeding by any Third Party, in respect of which indemnity may be obligated to provide indemnification pursuant to this Agreement, such Indemnitee sought hereunder and will notify give the Indemnifying Party in writingsuch information with respect thereto as the Indemnifying Party may reasonably request, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, that but failure to timely give such notification will notice or at all shall not affect relieve the indemnification provided Indemnifying Party of any liability hereunder except (unless and to the extent the Indemnifying Party has suffered prejudice by such failure). The Indemnifying Party shall have been actually prejudiced as the right, but not the obligation, exercisable by written notice to the Indemnified Party within 30 days of receipt of notice from the Indemnified Party of the commencement of or assertion of any claim, action, suit or proceeding by a result Third Party in respect of which indemnity may be sought hereunder (a "Third-Party Claim"), to assume the defense and control the settlement of such failureThird-Party Claim that (i) involves (and continues to involve) solely money damages or (ii) involves (and continues to involve) claims for both money damages and equitable relief against the Indemnified Party that cannot be severed, where the claims for money damages are the primary claims asserted by the Third Party and the claims for equitable relief are incidental to the claims for money damages.
(b) If a Third Party Claim is made against an Indemnitee and the The Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify or the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with Indemnified Party, as the other terms hereof)case may be, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel(but not control), at its own expense (except as otherwise provided in the preceding sentence)expense, separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Third-Party Claim and keep that the Indemnitee fully informed of all developments relating to or other is defending, as provided in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party)this Agreement.
(c) If The Indemnifying Party, if it has assumed the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third defense of any Third-Party Claim (subject to verification that any losses or costs as provided in respect thereof constitute Damages and compliance with the other terms hereof)this Agreement, the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlementa settlement of, compromise or discharge (including the consent to entry of any judgment)judgment arising from, and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Third-Party Claim without the Indemnifying Indemnified Party's prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee unless such settlement or judgment relates solely to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. If the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreementmonetary damages. The Indemnifying Party shall pay not, without the amount of Indemnified Party's prior written consent, enter into any compromise or settlement that (i) commits the Indemnified Party to take, or to forbear to take, any action or (ii) does not provide for a complete release by such liability to the Indemnitee on demand or, in the case of any notice in which the amount Third Party of the claim (or Indemnified Party. The Indemnified Party shall have the sole and exclusive right to settle any portion thereof) is estimatedThird-Party Claim, on such later date when terms and conditions as it deems reasonably appropriate, to the amount of extent such claim (Third-Party Claim involves equitable or such portion thereof) becomes finally determined. If other non-monetary relief against the Indemnified Party, and shall have the right to settle any Third-Party Claim involving money damages for which the Indemnifying Party has timely disputed its liability not assumed the defense pursuant to this Section 9.4 with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution written consent of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11which consent shall not be unreasonably withheld or delayed.
Appears in 1 contract
Procedures for Indemnification. (a) If a claim or demand is made against an IndemniteeIndemnified Person, or if an Indemnitee Indemnified Person shall otherwise learn of an assertion, by any Person who is not a party to this Agreement (or an Affiliate thereof) (a "“Third Party Claim"”) as to which one CTI or more parties Shareholders (collectively, the "“Indemnifying Party"”) may be obligated to provide indemnification pursuant to this Agreement, such Indemnitee an Indemnified Person will notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly in a prompt manner a reasonable amount of time after becoming aware of such Third Party ClaimClaim (the “Claim Notice”); provided, however, that failure to give any such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure; provided, further, however, that in any event, such notification must be given within the particular survival period noted in Section 10.1 above to be eligible for indemnification.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof)Indemnified Person, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the IndemniteeAudioCodes. Should the Indemnifying Party so elect to assume the defense and settlement of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee an Indemnified Person for any legal or other expenses subsequently incurred by the Indemnitee an Indemnified Person in connection with the defense thereofthereof as long as the Indemnifying Party diligently conducts such defense; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall an Indemnified Person will have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee the Indemnified Person and in that event the reasonable fees and expenses of each such separate counsel shall will be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee shall An Indemnified Person will have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence)expense, separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall will be liable for the reasonable fees and expenses of counsel employed by the Indemnitee an Indemnified Person for any period after the receipt of the Claim Notice during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid)thereof. If the Indemnifying Party assumes the defense of any Third Party Claim, the The Indemnifying Party will promptly supply to the Indemnitee AudioCodes copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee AudioCodes fully informed of all developments relating to or in connection with such Third Party Claim (including including, without limitation, providing to the Indemnitee AudioCodes on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall Indemnified Person will reasonably cooperate with the Indemnifying Party in the defense thereof if requested by the Indemnifying Party (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to ) of any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim which does not include a provision whereby the plaintiff or claimant in the matter releases the relevant Indemnified Party from all Liability with respect thereto, without the Indemnifying Party's AudioCodes’ prior written consent (which consent shall will not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee an Indemnified Person to the Indemnifying Party from whom such indemnification is sought. The failure and by any Indemnitee so to notify a claim upon the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. If the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made Indemnity Fund as stated in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11.Article V.
Appears in 1 contract
Procedures for Indemnification. (a) If a claim or demand is made against any person who is entitled to indemnification hereunder (an "Indemnitee, or an Indemnitee shall otherwise learn of an assertion, ") by any Person person who is not a party party, or an Affiliate of a party, to this Agreement (or an Affiliate thereof) (a "Third Party Claim") as to which one or more parties (collectively, the "Indemnifying Party") may be obligated such Indemnitee is entitled to provide indemnification pursuant to this Agreement, such Indemnitee will shall notify the party obligated hereunder to indemnify such Indemnitee (the "Indemnifying Party Party") in writing, and in reasonable detail, of the Third Party Claim reasonably promptly (and in any event within 15 business days) after becoming aware receipt by such Indemnitee of such written notice of the Third Party Claim; provided, however, that failure to give such notification will shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure.
failure (bexcept that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice). Thereafter, the 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 the Third Party Claim. If a Third Party Claim is made against an Indemnitee and Indemnitee, the Indemnifying Party unconditionally shall be entitled to partici- ▇▇▇▇ in the defense thereof and, if it so chooses and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof)therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and Party; provided that such counsel is not reasonably satisfactory objected to by the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will shall not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, that if in any Indemnitee's reasonable judgment there exists or is reasonably likely to exist a conflict of interest exists that would make it inappropriate in respect the reasonable judgment of such claim, such the Indemnitee shall have for the right same counsel to employ separate counsel (which shall be reasonably satisfactory to represent both the Indemnitee and the Indemnifying Party) and one local counsel to represent such , then the Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such entitled to retain its own counsel, at the expense of the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claimsuch defense, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence)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 fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect (other than during the period prior to assume the defense thereof (including acknowledging its indemnification obligation time the Indemnitee shall have given notice of the Third Party Claim as aforesaidprovided above). If the Indemnifying Party assumes so elects to assume the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies all of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemniteeprosecution thereof. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee liability for a Third Party Claim, then in no event will the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such any Third Party Claim without the Indemnifying Party's prior written consent; provided, however, that the Indemnitee shall have the right to settle, compromise or discharge such Third Party Claim without the consent (which consent shall of the Indemnifying Party if the Indemnitee releases in writing the Indemnifying Party from its indemnification obligation hereunder with respect to such Third Party Claim and such settlement, compromise or discharge would not be unreasonably withheld).
(d) Any claim on account otherwise adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, the Indemnitee will agree to any settlement, compromise or discharge of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to that the Indemnifying Party from whom may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim and releases the Indemnitee completely in connection with such Third Party Claim and that would not otherwise adversely affect the Indemnitee; provided, however, that all of the Indemnitees that are subject to the Third Party Claims that are to be settled, compromised or discharged may unanimously refuse to agree to any such settlement, compromise or discharge if each Indemnitee agrees that the Indemnifying Party's indemnification is soughtobligation with respect to such Third Party Claim shall not exceed the amount that would be required to be paid by or on behalf of the Indemnifying Party in connection with such settlement, compromise or discharge. The failure by any Indemnitee so to notify Notwithstanding the foregoing, the Indemnifying Party shall not relieve be entitled to assume the Indemnifying defense of any Third Party Claim (and shall be liable for the fees and expenses of counsel incurred by the Indemnitee in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with its counsel, cannot be separated from any liability which it may have to related claim for money damages. If such Indemnitee under this Agreementequitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. If be entitled to assume the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability defense of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability portion relating to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11money damages.
Appears in 1 contract
Sources: Partnership Interest Transfer Agreement (Itt Corp /Nv/)
Procedures for Indemnification. (a) If An Indemnification Claim shall be made by the Indemnitee by delivery of a claim or demand written declaration to the Indemnitor requesting indemnification and specifying in reasonable detail the basis on which indemnification is made against an Indemniteesought and the amount of asserted Losses and, or in the case of a Third Party Claim, attaching any written correspondence asserting such Third Party Claim. With respect to a Third Party Claim, an Indemnitee shall otherwise learn of an assertion, by any Person who is not a party deliver such declaration to this Agreement (or an Affiliate thereof) (a "Third Party Claim") as to which one or more parties (collectively, the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement, such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably Indemnitor promptly after becoming aware receiving notice of such Third Party Claim; provided, however, the failure to notify the Indemnitee will not relieve the Indemnitor of any liability that it may have to the Indemnitee, except to the extent that the Indemnitor's defense of or ability to settle such Indemnification Claim is actually and materially prejudiced by the Indemnitee's failure to give such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failurenotice.
(b) If a Third Party the Indemnification Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of involves a Third Party Claim, the Indemnifying Party will not procedures set forth in Section 7.5 hereof shall be liable to the Indemnitee for any legal or other expenses subsequently incurred observed by the Indemnitee in connection with and the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party)Indemnitor.
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for Indemnification Claim involves a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the matter other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for than a Third Party Claim, the Indemnitor shall have twenty (20) Business Days to object to such Indemnification Claim by delivery of a written notice of such objection to the Indemnitee specifying in reasonable detail the basis for such objection. If an objection is timely interposed by the Indemnitor, then the Indemnitee and the Indemnitor shall negotiate in good faith for a period of fifteen (15) Business Days from the date (such period is hereinafter referred to as the "Negotiation Period") the Indemnitee receives such objection. After the Negotiation Period, if the Indemnitor and the Indemnitee still cannot (unless required by law) admit any liability with respect toagree on an Indemnification Claim, or settle, compromise or discharge, such Third Party Claim without either the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld)Indemnitor and Indemnitee may commence litigation regarding the dispute.
(d) Any claim Upon determination of the amount of an Indemnification Claim that is binding on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by both the Indemnitee to Indemnitor and the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. If the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claimIndemnitee, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party Indemnitor shall pay the amount of such liability to the Indemnitee on demand or, in the case Indemnification Claim by wire transfer of any notice in which the amount immediately available funds within ten (10) days of the claim (or any portion thereof) date such amount is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11.
Appears in 1 contract
Sources: Equity Purchase Agreement (Composite Technology Corp)
Procedures for Indemnification. (a) If Promptly after receipt by a Buyer Indemnified Party or Seller Indemnified Party, as applicable (the “Indemnified Party”), of written notice of the assertion or the commencement of any claim or other litigation by a third party with respect to any matter referred to in Sections 8.2(a)-8.2(f) or 8.3(a)-8.3(e), the Indemnified Party shall give written notice thereof to Seller or Buyer, as applicable (the “Indemnifying Party”), which notice shall include a description of the claim or litigation and the good faith estimated amount of Losses asserted in connection therewith (to the extent such Losses can, in good faith, be estimated) and the basis for the claim or litigation, and thereafter shall keep the Indemnifying Party reasonably informed with respect thereto; provided, however, that failure of the Indemnified Party to give such notice as provided herein shall not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party is actually prejudiced thereby.
(b) The Indemnifying Party shall be entitled to participate in the defense of such third party claim or litigation giving rise to the Indemnified Party’s claim for indemnification at the Indemnifying Party’s expense, and at its option (subject to the limitations set forth below), to be exercised by giving written notice to the Indemnified Party, shall be entitled to assume the defense thereof at the Indemnifying Party’s expense by appointing a reputable counsel reasonably acceptable (such acceptance not to be unreasonably withheld, conditioned, or delayed) to the Indemnified Party to be the lead counsel in connection with such defense; provided, however, that:
(i) the Indemnified Party shall be entitled to participate in the defense of such claim or litigation and to employ counsel of its choice for such purpose, so long as the fees and expenses of such separate counsel are borne by the Indemnified Party; provided, that if in the reasonable opinion of counsel to the Indemnified Party, (A) there are legal defenses available to an Indemnified Party that are different from or additional to those available to the Indemnifying Party; or (B) there exists a conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived, the Indemnifying Party shall be liable for the reasonable documented and out-of-pocket fees and expenses of counsel to the Indemnified Party if it is ultimately determined that such Indemnifying Party is required to indemnify such Indemnified Party hereunder;
(ii) the Indemnifying Party shall not be entitled to assume control of such defense (unless otherwise agreed to in writing by the Indemnified Party) and shall pay the reasonable documented and out-of-pocket fees and expenses of counsel retained by the Indemnified Parties if it is ultimately determined that such Indemnifying Party is required to indemnify such Indemnified Party hereunder if (A) the claim for indemnification relates to or arises in connection with any criminal proceeding, action or indictment; or (B) the claim seeks an injunction or equitable relief against an Indemnified Party;
(iii) at any time during the pendency of such claim or any litigation or other proceeding relating thereto, the Indemnified Party may assume control of the defense and settlement of such claim upon prior written notice to the Indemnifying Party if, in the reasonable judgment of the Indemnified Party, the Indemnifying Party fails to diligently defend such claim; and
(iv) if the Indemnifying Party assumes control of the defense of any such claim or litigation, the Indemnified Party shall agree to any settlement, compromise or discharge of such claim or litigation that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of Losses in connection with such claim or litigation and does not impose any financial or other material obligations or material restrictions on the Indemnified Party in any manner (for clarity, other than obligations for which the Indemnified Party is indemnified hereunder); provided, however, that the Indemnifying Party shall obtain the prior written consent of the Indemnified Party before entering into any settlement of a claim or demand is made litigation or ceasing to defend such claim or litigation if, pursuant to or as a result of such settlement or cessation, injunctive or other equitable relief will be imposed against an Indemniteethe Indemnified Party or if such settlement does not expressly and unconditionally release the Indemnified Party from all liabilities with respect to such claim or litigation, or an Indemnitee shall otherwise learn of an assertion, by with prejudice.
(c) In order for any Person who is not a party Indemnified Party to this Agreement (or an Affiliate thereof) (a "Third Party Claim") as be entitled to which one or more parties (collectively, the "Indemnifying Party") may be obligated to provide any indemnification pursuant to this AgreementArticle VIII for a Loss that does not result from any claim or other litigation by a third party, such Indemnitee will the Indemnified Party shall notify the Indemnifying Party in writing, and in reasonable detail, writing within ten (10) Business Days of the Third such Indemnifying Party Claim reasonably promptly after becoming aware of the event giving rise to such Third Party ClaimIndemnified Party’s claim for indemnification, specifying in reasonable detail the basis of such claim; provided, however, that failure to give such notification will shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure.
. The Indemnifying Party shall have thirty (b30) If a Third days after its receipt of such notice to respond in writing to such claim, during which thirty (30) day period the Indemnified Party Claim is made against an Indemnitee and shall give the Indemnifying Party unconditionally reasonable access to the books, records and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnifying Party will be entitled to assume the defense thereof (at the expense assets of the Indemnifying Party) with counsel selected by Indemnified Party which evidence or support such claim or the Indemnifying Party act, omission or occurrence giving rise to such claim and reasonably satisfactory the right, upon prior notice during normal business hours, to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for interview any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect Representative of such claimIndemnified Party, such Indemnitee shall have including outside legal counsel, accountants and financial advisors of the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying PartyIndemnified Party related thereto. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. If the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed disputes its liability with respect to any such claim, as provided above, the Indemnifying Party and the Indemnitee Indemnified Party shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by for a period of thirty (30) days. If after the 90th day after notice conclusion of such claim was given thirty (30) day period the dispute has not been resolved, the Indemnified Party shall be free to pursue such remedies as may be available to the Indemnifying Party, Indemnified Party on the Indemnifying Party terms and subject to the Indemnitee will resolve such dispute in accordance with Section 14.11provisions of this Agreement.
Appears in 1 contract
Procedures for Indemnification. (a) If Promptly after receipt by a claim Tejas Indemnified Party of written notice of the assertion or demand is made against an Indemnitee, or an Indemnitee shall otherwise learn the commencement of an assertion, any proceeding by a third-party with respect to any Person who is not a party matter referred to this Agreement (or an Affiliate thereof) (a "Third Party Claim") as to which one or more parties (collectivelyin Section 8.01, the "Indemnifying Party") may be obligated Tejas Indemnified Party shall give written notice thereof to provide indemnification pursuant to this Agreement, such Indemnitee will notify the Indemnifying Party in writingHolders, and in reasonable detail, of thereafter shall keep the Third Party Claim Holders reasonably promptly after becoming aware of such Third Party Claiminformed with respect thereto; provided, however, that failure of the Tejas Indemnified Party to give such notification will not affect the indemnification Holders notice as provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party herein shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this AgreementHolders of their obligations hereunder, except to the extent that the Indemnifying Party shall have been actually Holders are prejudiced by such failurethereby. If the Indemnifying Party does A claim for indemnification for any matter not dispute its liability to the Indemnitee with respect to the claim made in such notice involving a third-party proceeding may be asserted by notice to the Indemnitee prior Holders and shall be paid promptly after such notice. If the facts pertaining to a Loss arise out of the claim of any third party, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Holders may assume the defense or the prosecution thereof by prompt written notice to the expiration Tejas Indemnified Party, including the employment of counsel or accountants, at its sole cost and expense. In connection therewith, the Holders shall acknowledge that such claim is the proper subject of indemnification under Section 8.01; provided, however, that the foregoing shall not foreclose the Holders from taking the position that the Loss is governed by Section 8.06 hereof. The Tejas Indemnified Party shall have the right to employ counsel separate from counsel employed by the Holders in any such action and to participate therein, but the fees and expenses of such counsel employed by the Tejas Indemnified Party shall be at its sole cost and expense. Neither the Holders nor the Tejas Indemnified Party shall be liable for any settlement of any such claim effected without their respective prior written consent, which shall not be unreasonably withheld; provided that if the Holders do not assume the defense or prosecution of a claim as provided above within thirty (30-calendar-day period following ) days after notice thereof from the Indemnifying Tejas Indemnified Party's receipt of notice of , the Tejas Indemnified Party may settle such claim without the Holders' consent. Whether or not the Holders choose to so defend or prosecute such claim, all the claim parties hereto shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, cooperate in the case of any notice in which the amount of the claim (defense or any portion thereof) is estimatedprosecution thereof and shall furnish such records, on information and testimony, and attend such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claimconferences, discovery proceedings, hearings, trials and appeals, as provided above, the Indemnifying Party and the Indemnitee shall proceed may be reasonably requested in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11connection therewith.
Appears in 1 contract
Sources: Merger Agreement (Tejas Inc)
Procedures for Indemnification. (a) If As used herein, an "INDEMNIFIED ------------------------------- PARTY" means a claim or demand is made against an Indemniteeparty seeking indemnification pursuant to ARTICLE 10, or an Indemnitee shall otherwise learn of an assertion, by any Person and the term "INDEMNIFYING PARTY" means the party who is not a party to this Agreement (or an Affiliate thereof) (a "Third Party Claim") as to which one or more parties (collectively, the "Indemnifying Party") may be obligated to provide indemnification pursuant under ARTICLE 10. The Indemnified Party agrees to this Agreement, such Indemnitee will notify give the Indemnifying Party prompt written notice of any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in writingrespect of a third party (a "THIRD-PARTY CLAIM") of which it has knowledge, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of for which such Third Party Claim; provided, however, that failure to give such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnifying Party will be entitled to assume indemnification under this ARTICLE 10. In the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense case of a Third Third-Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate direct, through counsel (which shall be reasonably satisfactory to of its own choosing, the Indemnifying Party) and one local counsel to represent defense or settlement of any such Indemnitee and Third-Party Claim at its own expense. In such case the Indemnified Party may participate in that event such defense, but in such case the reasonable fees and expenses of each such counsel shall the Indemnified Party will be paid by such Indemnifying the Indemnified Party. If The Indemnified Party will promptly provide the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply with access to the Indemnitee copies of all correspondence Indemnified Party's records and documents personnel relating to or in connection with any such Third Third-Party Claim during normal business hours and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably will otherwise cooperate with the Indemnifying Party in the defense thereof (or settlement of such cooperation to be at Third-Party Claim, and the expenseIndemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, including reasonable legal fees personnel and expenses, cooperation. Upon assumption of the defense of any such Third-Party Claim by the Indemnifying Party).
(c) If , the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third-Party Claim, unless the Indemnifying Party unconditionally and irrevocably acknowledges consents in writing its obligation to indemnify such payment (which consent will not be unreasonably withheld) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnitee Indemnified Party is entered against the Indemnified Party for a Third such liability. No such Third-Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which may be settled by the Indemnifying Party may recommend and which by its terms obligates without the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members written consent of the Buyer Group or the Seller GroupIndemnified Party, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall which consent will not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemniteeunreasonably withheld. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation fails to indemnify defend or fails to prosecute or withdraws from such defense, then the Indemnitee for a Third Indemnified Party Claimwill have the right to undertake the defense or settlement thereof, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without at the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account expense. If the Indemnified Party assumes the defense of Damages which does not involve a Third any such Third-Party Claim shall be asserted by reasonably pursuant to this ARTICLE 10 and proposes to settle such Third-Party Claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice given by the Indemnitee to thereof and the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so will have the right to notify participate in the Indemnifying Party shall not relieve settlement or assume or reassume the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. If the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice defense of such claim, the claim shall be conclusively deemed a liability of the Indemnifying Third-Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11Claim.
Appears in 1 contract
Sources: Asset Purchase Agreement (Crescent Communications Inc)
Procedures for Indemnification. (a) If As used herein, an "INDEMNIFIED PARTY" means a claim Purchaser Indemnitee seeking indemnification pursuant to Section 10.2 hereof or demand is made against an Indemniteea Seller Indemnitee seeking indemnification pursuant to Section 10.3 hereof. The Indemnified Party agrees to give the other party ("INDEMNITOR") prompt written notice of any event, or an Indemnitee shall otherwise learn any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect of an assertion, by any Person who is not a third party to this Agreement (or an Affiliate thereof) (a "THIRD PARTY CLAIM") of which it has knowledge, for which such Indemnified Party is entitled to indemnification under this Article X (including in any case copies of any summons, complaint or other pleading which may have been served on it and any written claim, demand, invoice, billing or other document evidencing or asserting the same). No delay on the part of an Indemnified Party in giving the Indemnitor notice of a Third Party Claim shall relieve the Indemnitor from any obligation hereunder unless the Indemnitor is prejudiced thereby.
(b) Within twenty days of delivery of such written notice, the Indemnitor may, at the expense of the Indemnitor, elect to take all necessary steps properly to contest any Third Party Claim or to prosecute such Third Party Claim to conclusion or settlement; provided, that without the prior written consent of an Indemnified Party, the Indemnitor will not enter into any settlement of a Third Party Claim which would lead to liability or create any financial or other obligation on the part of such Indemnified Party for which such Indemnified Party is not indemnified hereunder. If the Indemnitor makes the foregoing election, an Indemnified Party will have the right to participate at its own expense in all proceedings. If the Indemnitor does not make such election or if the Indemnitor fails to take reasonable steps necessary to diligently defend such Third Party Claim within twenty days after receiving notice from the Indemnified Party that the Indemnified Party believes that the Indemnitor has failed to take such steps, an Indemnified Party shall be free to handle the prosecution or defense of any such Third Party Claim") as , will take all necessary steps to which one contest the Third Party Claim or more parties to prosecute such Third Party Claim to conclusion or settlement satisfactory to such Indemnified Party at the sole cost and expense of the Indemnitor (collectivelyincluding reasonable attorney's and expert's fees and expenses and court and arbitration costs), the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement, such Indemnitee will notify the Indemnifying Indemnitor of the progress of any such Third Party Claim, will permit the Indemnitor, at the sole cost of the Indemnitor, to participate in writingsuch prosecution or defense and will provide the Indemnitor with reasonable access to all relevant information and documentation relating to the Third Party Claim and the prosecution or defense thereof. In any case, and the party not in reasonable detail, control of the Third Party Claim reasonably promptly after becoming aware will cooperate with the other party in the conduct of the prosecution or defense of such Third Party Claim; provided. Notwithstanding the foregoing, however, if an Indemnified Party is offered a written settlement proposal by a third party that failure to give such notification will not affect has as its sole component the indemnification provided hereunder except payment of money by the Indemnified Party and the Indemnitor recommends to the extent Indemnified Party in writing that it accept such settlement proposal (the Indemnifying Party shall have been actually prejudiced as a result of such failure.
(b"SANCTIONED SETTLEMENT") If a Third Party Claim is made against an Indemnitee and the Indemnifying Indemnified Party unconditionally and irrevocably acknowledges refuses to accept such settlement proposal, in writing its obligation such event if the ultimate settlement terms agreed to indemnify by the Indemnitee therefor Indemnified Party with such third party or the final monetary damages award against the Indemnified Party (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereofeither, a "FINAL SETTLEMENT AMOUNT"), the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. If the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which greater than the amount of the claim (or any portion thereof) is estimatedSanctioned Settlement, on such later date when the Indemnified Party shall be responsible for the differential between the Final Settlement Amount and the Sanctioned Settlement and the Indemnitor's liability shall be limited to the amount of such claim (or such portion thereof) becomes finally determined. If specified in the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11Sanctioned Settlement.
Appears in 1 contract
Procedures for Indemnification. Each party entitled to indemnification under this Article 3 (a) If a claim or demand is made against an Indemniteethe "Indemnified Party"), or an Indemnitee shall otherwise learn of an assertion, by any Person who is not a give notice to the party required to this Agreement provide indemnification (or an Affiliate thereof) (a "Third Party Claim") as to which one or more parties (collectively, the "Indemnifying Party") promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be obligated to provide indemnification pursuant to sought in accordance with this AgreementArticle 3, such Indemnitee will notify and shall permit the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, that failure to give such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third any such claim or any litigation resulting therefrom, provided that counsel for the Indemnifying Party, who shall conduct the defense of such claim or litigation, shall be approved by the Indemnified Party Claim(whose approval shall not unreasonably be withheld), and the Indemnified Party may participate in such defense. Failure of the Indemnified Party to give notice as provided herein shall relieve the Indemnifying Party will not be liable of its obligations under this Article 3 only to the Indemnitee for any legal extent that the failure or other expenses subsequently incurred by delay in giving notice has a material adverse impact on the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict ability of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes to defend against such claim. No Indemnifying Party, in the defense of any Third Party Claimsuch claim or litigation, the Indemnitee shall have the right to participate in the defense thereof and to employ counselshall, at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expenseconsent of each Indemnified Party, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment)judgment or enter into any settlement that does not include as an unconditional term thereof, and the Indemnitee may refuse giving of a release from all liability in respect to agree to such claim or litigation. If any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Indemnified Party shall have been actually prejudiced advised by such failure. If the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made in such notice counsel chosen by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall it that there may be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (one or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect more legal defenses available to such claim, as provided above, the Indemnifying Indemnified Party and the Indemnitee shall proceed in good faith that are different from or additional to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given those available to the Indemnifying Party, the Indemnifying Party shall not have the right to assume the defense of such action on behalf of such Indemnified Party and will reimburse such Indemnified Party and any person controlling such Indemnified Party for the Indemnitee will resolve reasonable fees and expenses of any counsel retained by the Indemnified Party, it being understood that the Indemnifying Party shall not, in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys for such dispute Indemnified Party or controlling person, which firm shall be designated in accordance with Section 14.11writing by the Indemnified Party to the Indemnifying Party.
Appears in 1 contract
Sources: Registration Rights Agreement (Global Self Storage, Inc.)
Procedures for Indemnification. (a) If Any Person making a claim for indemnification under Section 9.1 or 9.2 (an “Indemnified Party”) shall notify the party against whom indemnification is sought (an “Indemnifying Party”) of the claim in writing promptly after receiving notice of any action, lawsuit, proceeding, investigation, demand is made or other claim against an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, the Indemnified Party by any Person who is not a third party to this Agreement (or an Affiliate thereof) (a "“Third Party Claim") as to which one or more parties (collectively, the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement, such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, that failure to give such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof”), describing the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, amount thereof (if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Partyknown and quantifiable) and one local counsel to represent such Indemnitee and the basis thereof in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof detail (such cooperation to be at the expensewritten notice, including reasonable legal fees and expenses, of the Indemnifying Partyan “Indemnification Notice”).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, ; provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent failure to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the an Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, of its obligations hereunder except to the extent that (and only to the extent that) such failure shall have caused the indemnifiable Losses to be greater than such Losses would have been had the Indemnified Party given the Indemnifying Party prompt notice hereunder. Any Indemnifying Party shall be entitled to participate in the defense of such Third Party Claim at such Indemnifying Party’s expense, and at its option shall be entitled to assume the defense thereof by appointing a reputable counsel to be the lead counsel in connection with such defense; provided, that, the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ counsel of its choice for such purpose (provided, that, the fees and expenses of such separate counsel shall be borne by the Indemnified Party and shall not be recoverable from such Indemnifying Party under this ARTICLE IX). Upon assumption of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of the Third Party Claim, unless the Indemnifying Party consents in writing to such payment (such consent not to be unreasonably withheld or delayed) or unless a final judgment or tribunal finding from which no appeal may be taken by or on behalf of the Indemnified Party is entered or made against the Indemnified Party for such Liability or a matter has been settled with the consent (such consent not to be unreasonably withheld or delayed) of the Indemnifying Party. Notwithstanding anything to the contrary herein, the Indemnifying Party shall have been actually prejudiced not compromise or settle, or admit any Liability with respect to, any Third Party Claim without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed), unless the relief consists solely of (i) money damages (all of which the Indemnifying Party shall pay) and (ii) includes a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all Liability with respect thereto. The Indemnified Party shall provide its reasonable cooperation with the Indemnifying Party in defense of Third Party Claims, including by such failuremaking employees, information and documentation reasonably available. If the Indemnifying Party does shall not dispute its liability reasonably promptly assume the defense of any such Third Party Claim, or fails to prosecute or withdraws from the Indemnitee defense of any such Third Party Claim, the Indemnified Party may defend against such matter in a manner consistent with the above provisions regarding conduct of the defense by the Indemnified Party; provided, that, the Indemnified Party may not settle any such matter without the written consent of the Indemnifying Party (which consent shall not be unreasonably withheld or delayed).
(b) The Indemnified Party shall notify the Indemnifying Party with respect to an indemnifiable claim together with the Related Claims that exceeds the Minimum Per Claim Amount even though the amount thereof, plus the amount of other indemnifiable claims that exceed the Minimum Per Claim Amount previously notified by the Indemnified Party, in the aggregate, is less than the Deductible.
(c) In the event that any party or any of its Affiliates alleges that it is entitled to indemnification hereunder, and that its claim made in is covered under more than one provision of this ARTICLE IX, such notice party or Affiliates shall be entitled to elect the provision or provisions under which it may bring a claim for indemnification.
(d) A claim for indemnification for any matter not involving a Third Party Claim may be asserted by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) party from whom indemnification is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11sought.
Appears in 1 contract
Procedures for Indemnification. (a) If a claim or demand is made against an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, by any Person who is not a party to this Agreement (or and who is not an Affiliate thereofof a party to this Agreement) (a "“Third Party Claim"”) as to which one or more parties a party (collectively, the "“Indemnifying Party"”) may be obligated to provide indemnification pursuant to this Agreement, such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly (and, in any event, within thirty (30) days) after becoming aware of such Third Party Claim; provided, however, that failure to give any such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have has been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof)therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if such Indemnitee has been advised in any Indemnitee's reasonable judgment a writing by its counsel that in the opinion of such counsel there is an actual conflict of interest exists in respect of the same counsel representing both such claimparties, such Indemnitee shall Indemnitees will have the right to employ one (1) separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such separate counsel shall will be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any such Third Party Claim, the each Indemnitee shall will have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence)expense, separate from the counsel employed by the Indemnifying Party; provided that counsel selected by the Indemnifying Party shall control the defense. The Indemnifying Party shall will be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which if the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging the acknowledgment by each Indemnifying Party of its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof)Claim. If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If No Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee’s prior written consent; provided that if the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof)Claim, the Indemnitee will shall agree to any settlement, compromise or discharge of such Third Party Claim which that the Indemnifying Party may recommend that unconditionally and irrevocably releases the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, ; provided, however, that, without that the Indemnitee's prior written consent, the Indemnifying Party shall not consent Indemnitee may refuse to agree to any such settlement, compromise or discharge (including the consent to entry of any judgment), and ) of any Third Party Claim that (x) provides for injunctive or other nonmonetary relief affecting the Indemnitee may refuse to agree to or any such settlementof its Affiliates or (y) involves the imposition of any fine, compromise payment or discharge thatother sanction by any Governmental Entity (for the avoidance of doubt, the word “payment” as used in this clause (y) does not include the reasonable opinion payment of the Indemnitee could reasonably be expected to materially and adversely affect the Indemniteeany Taxes other than any fine or sanction in respect of Taxes). If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim (other than a Third Party Claim by a Governmental Entity) without the Indemnifying Party's ’s prior written consent (which consent shall not be unreasonably withheld)consent.
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. If the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11.
Appears in 1 contract
Sources: Asset Purchase Agreement (Evans & Sutherland Computer Corp)
Procedures for Indemnification. (a) If All claims for indemnification by either a claim Company Indemnified Person or demand is made against an Indemnitee, or an Indemnitee Parent Indemnified Person under this Article IX shall otherwise learn of an assertion, by any Person who is not a party to this Agreement (or an Affiliate thereof) (a "Third Party Claim") as to which one or more parties (collectively, the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement, such Indemnitee will notify the Indemnifying Party asserted and resolved in writing, accordance with Section 9.5 and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, that failure to give such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failureSection 9.6.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation Parent Indemnified Person intends to indemnify the Indemnitee therefor (subject seek indemnification pursuant to verification that any losses or costs in this Article IX with respect thereof constitute Damages and compliance with the other terms hereof)to a third-party claim, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party ClaimParent Indemnified Person shall, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect promptly following such Parent Indemnified Person’s knowledge of such claim, notify the Stockholder Representative in writing of such Indemnitee shall claim, describing such claim in reasonable detail and the amount or estimated amount of any alleged Damages relating to such claim (the “Claims Notice”); provided that the failure to provide prompt notice will relieve the indemnifying party of any liability it may have the right to employ separate counsel (which shall be reasonably satisfactory under this Article IX to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes extent the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed such claim is adversely affected by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed indemnified party’s failure to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party)provide prompt notice.
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation a Company Indemnified Person intends to indemnify the Indemnitee for seek indemnification pursuant to this Article IX with respect to a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof)third-party claim, the Indemnitee will agree to any settlementStockholder Representative shall, compromise or discharge promptly following the Stockholder Representative’s knowledge of such Third Party Claim which claim, deliver a Claims Notice to Parent; provided that the Indemnifying Party may recommend and which by its terms obligates failure to provide prompt notice will relieve the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry indemnifying party of any judgment), and liability it may have under this Article IX to the Indemnitee may refuse extent the defense of such claim is adversely affected by the indemnified party’s failure to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld)provide prompt notice.
(d) Any claim on account of Damages The party from which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so is seeking indemnification under this Article IX (the “Indemnitor”) shall have 30 days from the date on which the Indemnitor received the Claims Notice to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failureIndemnitor desires to assume the defense or prosecution of the third party claim and any litigation resulting therefrom with counsel of its choice. If the Indemnifying Party does not dispute its liability to Indemnitor assumes the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount defense of such claim in accordance herewith: (i) the Indemnitee may retain separate co-counsel at its sole cost and expense and participate in the defense of such third party claim, but the Indemnitor shall control the investigation, defense and settlement thereof; (ii) the Indemnitee shall not file any papers or such portion thereof) becomes finally determined. If consent to the Indemnifying Party has timely disputed its liability entry of any judgment or enter into any settlement with respect to such claim, as provided abovethird party claim without the prior written consent of the Indemnitor; and (iii) the Indemnitor shall not consent to the entry of any judgment or enter into any settlement with respect to such third party claim without the prior written consent of the Indemnitee unless the judgment or settlement provides solely for the payment of money, the Indemnifying Party Indemnitor makes such payment (subject to the applicable limitations contained herein) and the Indemnitee receives an unconditional release. The parties shall proceed act in good faith in responding to, defending against, settling or otherwise dealing with third party claims, and cooperate in any such defense and give each other reasonable access to negotiate a resolution all information relevant thereto. Whether or not the Indemnitor has assumed the defense of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Partythird party claim, the Indemnifying Party and Indemnitor will not be obligated to indemnify the Indemnitee will resolve such dispute in accordance hereunder with Section 14.11respect to any settlement entered into or any judgment consented to without the Indemnitor’s prior written consent.
Appears in 1 contract
Sources: Merger Agreement (Trinet Group Inc)
Procedures for Indemnification. (a) If a claim or demand is made against an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, by any Person who is not a party Indemnified Party intends to this Agreement (or an Affiliate thereof) (a "Third Party Claim") as to which one or more parties (collectively, the "Indemnifying Party") may be obligated to provide seek indemnification pursuant to this AgreementArticle IV, such Indemnitee Indemnified Party shall promptly provide written notice to the party from whom indemnification is being sought (the “Indemnifying Party”), in writing in accordance with Section 7.1 of such claim describing such claim in reasonable detail including the sections of this Agreement which form the basis for such claim, copies of all material written evidence thereof and the estimated amount of the Indemnifiable Losses that have been or may be sustained by the Indemnified Party; provided, that the failure to provide such notice shall only affect the obligations of the Indemnifying Party unless and to the extent it is actually materially prejudiced thereby. In particular, in case of any investigation or audit for which indemnification of an Indemnified Party under this Article IV is reasonably likely, such Indemnified Party shall inform the Indemnifying Party at the commencement of such investigation or audit, to the extent practical, so that the Indemnifying Party may participate therein. In the event that such claim involves a claim by a third party against the Indemnified Party, the Indemnifying Party shall have 20 days after receipt of such notice to decide whether it will notify undertake, conduct and control, through counsel of its own choosing and at its own expense, the settlement or defense thereof, and if it so decides, the Indemnified Party shall cooperate with the Indemnifying Party in writing, and in reasonable detail, of connection with the Third Party Claim reasonably promptly after becoming aware settlement or defense of such Third Party Claimclaim; provided, however, that failure to give such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Indemnified Party shall have been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee shall have the right to may participate in the such settlement or defense thereof and to employ counselthrough counsel chosen by it; provided, at its own expense (except as otherwise provided in the preceding sentence)further, separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for that the fees and expenses of such counsel employed shall be borne by the Indemnitee Indemnified Party; provided, further, that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the reasonable judgment of the Indemnified Party for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain one law firm at the Indemnifying Party’s expense. Notwithstanding anything in this Section 4.4 to the contrary, the Indemnifying Party may, without the consent of the Indemnified Party, settle or compromise any period during action or consent to the entry of any judgment which is solely for money damages, which includes as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnified Party of a duly executed written release of the Indemnified Party from all liability in respect of such action, which release shall be reasonably satisfactory in form and substance to counsel for the Indemnified Party, and which does not involve an admission of guilt or liability. So long as the Indemnifying Party has failed agreed to assume undertake, conduct and control the defense thereof settlement or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claimsuch claim and is contesting any such claim in good faith, the Indemnifying Indemnified Party will promptly supply to shall not pay or settle any such claim without the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, written consent of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld)withheld or delayed.
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. If the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11.
Appears in 1 contract
Procedures for Indemnification. (a) If a claim or demand is made against an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, by any Person who is not a party to this Agreement (or an Affiliate thereof) (a "Third Party Claim") as to which one or more parties (collectively, the "Indemnifying Party") may be obligated to provide The procedures for indemnification pursuant to this AgreementArticle 8 will be as follows:
(a) The party claiming indemnification (the “Indemnified Party”) shall promptly give written notice to the party from whom indemnification is claimed (the “Indemnifying Party”) of any claim for Losses, such Indemnitee will notify whether arising between the Indemnifying Party parties or in writingconnection with a third-party claim made against the Indemnified Party, and specifying, in reasonable detail, the facts and circumstances of and the Third Party Claim reasonably promptly after becoming aware basis for such claim, as then known by the Indemnified Party. If an indemnification claim hereunder relates to a third-party claim made against the Indemnified Party, written notice of such Third third-party claim shall be given by the Indemnified Party Claim; provided, however, that failure to the Indemnifying Party promptly (but in any event within fifteen (15) days after written notice of such third-party claim shall have been given to the Indemnified Party by such third party). Failure to give such notification will prompt notice pursuant to this Section 8.4(a) shall not affect the Indemnifying Party’s indemnification provided obligations hereunder in the absence of material prejudice thereto (in which case the Indemnifying Party’s indemnification obligations shall only be reduced to the extent of such material prejudice).
(b) Following receipt of notice from the Indemnified Party of a claim, the Indemnifying Party will have thirty (30) days during which to make such investigation of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or the Indemnifying Party’s authorized Representative(s) the information relied upon by the Indemnified Party to substantiate the claim (except to the extent such information is privileged). If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said H:818672 48 thirty (30)-day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall promptly pay to the Indemnified Party the full amount of the claim in accordance with Section 8.4(f). In the event the parties are unable to agree, either party may bring a Proceeding to resolve such dispute in accordance with Section 9.10.
(c) With respect to any claim by a third-party for which an Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the right, at its own expense, to participate in or, if the Indemnifying Party unconditionally and irrevocably acknowledges in writing its so elects, to assume control of the defense of such claim through counsel of the Indemnifying Party’s choice reasonably acceptable to the Indemnified Party by providing written notice within thirty (30) days following notice from the Indemnified Party acknowledging the Indemnifying Party’s obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages Indemnified Party, and compliance the Indemnified Party shall reasonably cooperate with the other terms hereof), the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected , subject to reimbursement for reasonable and documented actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claimcooperate; provided, that the Indemnifying Party will not be liable entitled to control, and the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with Indemnified Party will be entitled to have sole control over, the defense thereof; provided thator settlement of any claim if (i) such claim involves a criminal proceeding, if in any Indemnitee's reasonable judgment action, indictment, allegation or investigation, (ii) a conflict of interest between the Indemnifying Party and the Indemnified Party exists other than ordinary conflicts that arise under this Agreement and the other Transaction Documents, (iii) such claim involves any customers of the Indemnified Party or its Affiliates, (iv) the Indemnifying Party has not agreed and acknowledged in writing (for the benefit of the Indemnified Party) its unqualified obligation to indemnify the Indemnified Party as provided hereunder with respect of to such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory subject to the limitations set forth in this Article 8, (vi) such claim seeks an injunction or other equitable relief against the Indemnified Party or any of its Affiliates or (vii) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party) and one local counsel Party failed or is failing to represent vigorously prosecute or defend such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Partyclaim. If the Indemnifying Party assumes elects to assume control of the defense of any Third Party Claimthird-party claim, the Indemnitee shall Indemnified Party will have the right to participate in the defense thereof and to employ counsel, of such claim at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Partyexpense. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party (such consent not to be liable for unreasonably denied, delayed, withheld or conditioned), settle, compromise or offer to settle or compromise any such claim or demand on a basis which would result in the fees and expenses imposition of counsel employed by a consent order, injunction or decree which would restrict the Indemnitee future activity or conduct of the Indemnified Party or any of its Affiliates or if such settlement or compromise does not include an unconditional release of the Indemnified Party for any period during which liability arising out of such claim or demand or any related claim or demand.
(d) If the Indemnifying Party has failed does not elect to assume control or otherwise participate in the defense of any third-party claim within thirty (30) days following notice from the Indemnified Party (or such earlier date, if the failure to assume the defense thereof or if it does not expressly elect on such earlier date would materially impair the ability of the Indemnified Party to assume defend such claim), the defense thereof Indemnified Party will (including acknowledging its indemnification obligation as aforesaid). If upon delivering written notice to such effect to the Indemnifying Party assumes Party) have the defense right to undertake the defense, compromise or settlement of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of such claim (all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees cost and expenses, expense of the Indemnifying Party), and the Indemnifying Party will be bound by the results obtained in good faith by the Indemnified Party with respect to such claim. The Indemnified Party will not settle, compromise or offer to settle or compromise any such claim or demand on a basis which would result in the imposition of a consent order, injunction or decree which would restrict the future activity or conduct of the Indemnifying Party without the consent of the Indemnifying Party, such consent not to be unreasonably withheld, denied, conditioned or delayed.
(ce) If the Indemnifying Party unconditionally any Buyer Group Member is entitled to recourse directly against any Seller pursuant to this Article 8 and irrevocably acknowledges in writing its obligation is not able to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay recover the full amount of Damages in connection with any such Third Party Claim and unconditionally and irrevocably releases claim from such Seller, Buyers shall have the Indemnitee right to: H:818672 49
(and i) if no Earn-Out Consideration has been paid, then withhold any Earn-Out Consideration that becomes due, including the other members issuance of a number of Earn-Out Shares having an aggregate Earn-Out Share Value equal to the amount that such Buyer Group Member was unable to recover. Each Seller hereby agrees to any such withholding of Earn-Out Consideration from such Seller in satisfaction of any indemnification obligations hereunder; or
(ii) if any Earn-Out Shares have been issued, demand from such Seller the satisfaction of such claim through the delivery to Buyers of a number of Earn-Out Shares held by such Seller having an aggregate Earn-Out Share Value equal to the amount that such Buyer Group Member was unable to recover. Each Seller hereby agrees to any such delivery of Earn-Out Shares from such Seller to Buyers in satisfaction of any indemnification obligations hereunder and authorizes Buyers to transfer such Earn-Out Shares to Buyers or any of their Affiliates. Notwithstanding the foregoing, if a Seller Groupfails to deliver such Earn-Out Shares in satisfaction of any indemnification obligations hereunder, without any further action by ▇▇▇▇▇▇, such Seller shall automatically forfeit all of such Seller’s rights, title and interest in and with respect to such Earn-Out Shares, and Buyers shall be deemed the owner of such Earn-Out Shares for all purposes, and Buyers agree to provide such Seller with written notice thereof promptly after any such forfeiture.
(f) Any indemnification payments made pursuant to this Article 8 shall be effected by wire transfer of immediately available funds to an account or accounts designated by the applicable Buyer Group Member or Seller Group Member, as the case may be, within three (3) completely from all Liability in connection with such Third Party ClaimBusiness Days after the determination thereof, providedwhether pursuant to a final judgment, however, that, without settlement or agreement among the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld)parties.
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. If the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11.
Appears in 1 contract
Procedures for Indemnification. Other than as set forth in Section 10, if a party entitled to indemnification under this Section 12.3 (aan “Indemnified Party”) If asserts that a party obligated to indemnify it under this Section 12.3 (an “Indemnifying Party”) has become obligated to such Indemnified Party pursuant to Section 12.2, or if any suit, action, investigation, claim or demand proceeding is begun, made against an Indemnitee, or an Indemnitee shall otherwise learn instituted as a result of an assertion, by any Person who is not a party to this Agreement (or an Affiliate thereof) (a "Third Party Claim") as to which one or more parties (collectively, the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement, such Indemnitee will notify the Indemnifying Party in writingmay become obligated to an Indemnified Party hereunder, and in reasonable detail, of such Indemnified Party shall give written notice to the Third Party Claim reasonably promptly after becoming aware of such Third Party ClaimIndemnifying Party; provided, however, that the failure of the Indemnified Party to give such notification will prompt notice to the Indemnifying Party shall not affect release the Indemnifying Party of its indemnification provided hereunder obligations hereunder, except to the extent the Indemnifying Party shall have been actually materially prejudiced as a result of by such failure.
(b) If a Third Party Claim is made against an Indemnitee and the . The Indemnifying Party unconditionally agrees to defend, contest or otherwise protect the Indemnified Party against any such suit, action, investigation, claim or proceeding at its sole cost and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (expense subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnifying Party will be entitled to assume the defense thereof (at the expense provisions of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Partythis Section 12.3. The Indemnifying Party shall have the sole power to direct and control the defense of any such suit, action, investigation, claim or proceeding. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in the defense thereof by counsel of the Indemnified Party’s choice; provided that the Indemnifying Party shall be liable responsible for the fees and expenses of one separate co-counsel employed for all Indemnified Parties to the extent the Indemnified Party is advised, in writing by its counsel, that either (x) the Indemnitee for any period during which counsel the Indemnifying Party has failed selected has a conflict of interest with respect to assume the defense thereof matter asserted which has not been waived by the relevant parties, or if it does not expressly elect (y) there are legal defenses available to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If Indemnified Party that are materially different from or additional to those available to the Indemnifying Party assumes Party. The parties shall cooperate in the defense of any Third Party Claimthird party claim and shall furnish such records, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence information and documents relating to or testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third the provisions of this Section 12.3. Any activities undertaken by the Indemnified Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing pursuant to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to prior sentence will be at the expense, including reasonable legal fees and expenses, sole expense of the Indemnifying Party).
(c) If . In the event of a failure of the Indemnified Party to provide cooperation as required under this Section 12.3, the Indemnifying Party unconditionally and irrevocably acknowledges in writing its Party’s obligation to indemnify the Indemnitee for a Third Indemnified Party Claim (subject shall be reduced to verification that any losses or costs in the extent of the Losses with respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which Party’s ability to defend against the action, investigation, claim or proceeding underlying such indemnification obligation has been prejudiced by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the failure. The Indemnifying Party shall not consent to any settlement, compromise or discharge (including settle any such suit, action, investigation, claim or proceeding without the consent to entry of any judgment), and the Indemnitee may refuse to agree to any Indemnified Party unless (z) such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably settlement is on exclusively monetary terms and shall be expected to materially and adversely affect the Indemnitee. If paid entirely by the Indemnifying Party unconditionally (subject to the provisions of Section 12.2(a) and irrevocably acknowledges (ii) and 12.2(b)(iv) and 12.2(c), which shall be controlling) and the Indemnified Party receives an unconditional release in such compromise or settlement or (xx) the Indemnified Party shall have consented in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, terms of such compromise or dischargesettlement, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third ; provided, however, that if the Indemnified Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee fails to consent thereto, the Indemnifying Party from whom Party’s liability with respect to such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party matter shall not relieve exceed the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failureproposed settlement amount. If the Indemnifying Party does not dispute its liability fails timely to the Indemnitee with respect to the defend, contest or otherwise protect against such suit, action, investigation, claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claimor proceeding, the claim Indemnified Party shall have the right to do so, including, without limitation, the right to make any compromise or settlement thereof, and the Indemnified Party shall be conclusively deemed a liability of entitled to recover the entire cost thereof from the Indemnifying Party under subject to the provisions of this Agreement. The Indemnifying Party Sections 12.2(a), 12.2(b)(iii), (iv) and (vi) and 12.2(c), which shall pay be controlling, including, without limitation, reasonable attorneys’ fees, disbursements and amounts paid as the amount result of such liability to the Indemnitee on demand orsuit, in the case of any notice in which the amount of the action, investigation, claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11proceeding.
Appears in 1 contract
Sources: Stock Purchase Agreement (Broadview Networks Holdings Inc)
Procedures for Indemnification. (ai) If a claim any Acquiror Indemnitee or demand is made against Seller Indemnitee (an Indemnitee"INDEMNIFIED PARTY") receives notice of the assertion of any claim, the commencement of any suit, action or proceeding, or an Indemnitee shall otherwise learn the imposition of an assertion, any penalty or assessment by any Person who is not a third party to this Agreement (or an Affiliate thereof) in respect of which indemnity may be sought hereunder (a "THIRD PARTY CLAIM"), and the indemnified party intends to seek indemnity hereunder, the indemnified party will promptly provide the other party (an "INDEMNIFYING PARTY") with written notice of the Third Party Claim") as , but in any event such notice shall be provided not later than 30 calendar days after receipt of such notice of Third Party Claim. The failure by an indemnified party to which one or more parties (collectivelyso notify an indemnifying party of a Third Party Claim will not relieve the indemnifying party of any indemnification responsibility under this Article X, except to the "Indemnifying Party") may extent, if any, that such failure materially prejudices the ability of the indemnifying party to defend such Third Party Claim. For clarification, it is agreed that Seller will not be obligated to provide indemnification an indemnifying party for claims pursuant to this AgreementSection 10.3(a) or 10.3(b) for amounts below the $25 million amount referred to in the last proviso of Section 10.3.
(ii) The indemnifying party will have the right to control the defense, such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, compromise or settlement of the Third Party Claim with its own counsel (reasonably promptly after becoming aware of such Third Party Claimsatisfactory to the indemnified party); provided, however, that failure to give such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party indemnifying party shall not consent to settle any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. If the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim indemnified party (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11.which
Appears in 1 contract
Sources: Stock Purchase Agreement (Martin Marietta Materials Inc)
Procedures for Indemnification. (a) If a claim or demand is made against an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, Promptly after receipt by any Person who is not a party entitled to indemnification under Sections 9.1 (Indemnification by Seller) or 9.2 (Indemnification by Purchaser) or any other provision of this Agreement (the “Indemnitee”) of written notice of the assertion or an Affiliate thereofthe commencement of any Proceeding with respect to any matter referred to in Sections 9.1 (Indemnification by Seller) or 9.2 (a "Third Party Claim"Indemnification by Purchaser) as to which one or more parties (collectively, the "Indemnifying Party") may be obligated to provide indemnification pursuant to in any other applicable provision of this Agreement, such the Indemnitee will notify give written notice describing such claim or Proceeding in reasonable detail in light of the Indemnifying Party in writingcircumstances then known to the Indemnitee to the party obligated to indemnify Indemnitee (the “Indemnitor”), and in reasonable detail, of thereafter will keep the Third Party Claim Indemnitor reasonably promptly after becoming aware of such Third Party Claiminformed with respect thereto; provided, however, that failure of the Indemnitee to give such notification keep the Indemnitor reasonably informed as provided herein will not affect relieve the indemnification provided Indemnitor of its obligations hereunder except to the extent that the Indemnifying Party shall have been actually Indemnitor is prejudiced as thereby. If any Proceeding will be commenced against any Indemnitee by a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof)third party, the Indemnifying Party Indemnitor will be entitled to participate in such Proceeding and assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should , at the Indemnifying Party so elect Indemnitor’s sole expense; provided, however, that the Indemnitor will be responsible for all resulting Damages; provided, further, however, that the Indemnitor will not have the right to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, Proceeding if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Partyi) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree have one or more legal or equitable defenses available to any settlementit which are different from or in addition to those available to the Indemnitor, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge thatand, in the reasonable opinion of the Indemnitee, counsel for the Indemnitor could not adequately represent the interests of the Indemnitee because such interests could be in conflict with those of the Indemnitor; (ii) such litigation is reasonably be expected likely to materially and adversely affect have a material adverse effect on any other matter beyond the Indemniteescope or limits of the indemnification obligation of the Indemnitor; (iii) the Indemnitor will not have assumed the defense of the litigation in a timely fashion (but in any event within [***] of notice of such Proceeding); or (iv) such Proceeding involves a Governmental Authority or any allegation of any criminal violation. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify Indemnitor will assume the Indemnitee for a Third Party Claimdefense of any Proceeding, the Indemnitee shall will be entitled to participate in any Proceeding at its expense, and the Indemnitor will not (settle such Proceeding unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given settlement will include as an unconditional term thereof the giving by the Indemnitee to claimant or the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. If the Indemnifying Party does not dispute its liability to plaintiff of a full and unconditional release of the Indemnitee from all Liability with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect matters that are subject to such claimProceeding, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations or otherwise will have been approved by the 90th day after notice of Indemnitee, such claim was given approval not to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11be unreasonably withheld or delayed.
Appears in 1 contract
Sources: Asset Purchase Agreement (Forma Therapeutics Holdings, Inc.,)
Procedures for Indemnification. (a) If In the case of a third party claim or demand is ("THIRD PARTY CLAIM") made against an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, by any Person who is not a party to this Agreement (or an Affiliate thereof) (a "Third Party Claim") as to which one or more parties a party (collectively, the "Indemnifying PartyINDEMNITOR") may be obligated to provide indemnification pursuant to this Agreement, such Indemnitee party seeking indemnification hereunder ("INDEMNITEE") will notify the Indemnifying Party Indemnitor in writing, and in reasonable detail, writing of the Third Party Claim reasonably (and specifying in reasonable detail the factual basis for the Third Party Claim and to the extent known, the amount of the Third Party Claim) promptly after becoming aware of such Third Party Claim; providedPROVIDED, howeverHOWEVER, that failure to give such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party Indemnitor shall have been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and Indemnitee, the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify Indemnitor will be entitled, within one hundred twenty (120) days after receipt of written notice from the Indemnitee therefor (subject to verification that of the commencement or assertion of any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof)such Third Party Claim, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying PartyIndemnitor) with counsel selected by the Indemnifying Party Indemnitor and reasonably satisfactory to the Indemnitee, for so long as the Indemnitor is conducting a good faith and diligent defense. Should the Indemnifying Party Indemnitor so elect to assume the defense of a Third Party Claim, :
(i) the Indemnifying Party Indemnitor will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided thatPROVIDED, that if in any Indemnitee's reasonable judgment under applicable standards of professional conduct a conflict of interest exists between the Indemnitor and the Indemnitee in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying PartyIndemnitor) and one local counsel to represent such Indemnitee with respect to the matters as to which a conflict of interest exists and in that event the reasonable fees and expenses of each such separate counsel shall be paid by such Indemnifying Party. If Indemnitor; PROVIDED, FURTHER, that the Indemnifying Party assumes Indemnitor shall only be responsible for the defense reasonable fees and expenses of any Third Party Claim, one separate counsel for such Indemnitee;
(ii) the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence)expense, separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for Indemnitor;
(iii) the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party Indemnitor will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim Claim, as may be reasonably requested by the Indemnitee (including providing to the Indemnitee on reasonable request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, ; and
(iv) all the Indemnitees shall reasonably cooperate with the Indemnifying Party Indemnitor in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying PartyIndemnitor).
(c) If the Indemnifying Indemnitor does not elect to assume control of the defense of any Third Party unconditionally Claim within the 120-day period set forth above, or if such good faith and irrevocably diligent defense is not being or ceases to be conducted by the Indemnitor, the Indemnitee shall have the right, at the expense of the Indemnitor, after three (3) Business Days notice to the Indemnitor of its intent to do so, to undertake the defense of the Third Party Claim for the account of the Indemnitor (with counsel selected by the Indemnitee), and to compromise or settle such Third Party Claim, exercising reasonable business judgment.
(d) If the Indemnitor acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof)Claim, the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which that the Indemnifying Party Indemnitor may recommend and which that by its terms obligates the Indemnifying Party Indemnitor to pay the full amount of Damages Third Party Liabilities (whether through settlement or otherwise) in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability Third Party Liabilities in connection with such Third Party Claim; PROVIDED, provided, howeverHOWEVER, that, without the Indemnitee's prior written consent, the Indemnifying Party Indemnitor shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge thatdischarge, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect that provides for injunctive or other nonmonetary relief affecting the Indemnitee. If the Indemnifying Party unconditionally and irrevocably Indemnitor acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by lawLaw) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying PartyIndemnitor's prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. If the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11.
Appears in 1 contract
Sources: Finished Product Supply Agreement (Kos Pharmaceuticals Inc)
Procedures for Indemnification. (a) If In the case of a third party claim or demand is (“Third-Party Claim”) made against an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, by any Person who is not a party to Party of this Agreement (or an Affiliate thereof) (a "Third Party Claim") as to which one or more parties a Party (collectively, the "Indemnifying Party"“Indemnitor”) may be obligated Obligated to provide indemnification pursuant to this Agreement, such Indemnitee Party seeking indemnification hereunder (“Indemnitee”) will notify the Indemnifying Indemnitor in writing of the Third-Party in writing, Claim (and specifying in reasonable detaildetail the factual basis for the Third-Party Claim and to the extent known, the amount of the Third Third-Party Claim Claim) reasonably promptly after becoming aware of such Third Third-Party Claim; provided, however, that failure to give such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party Indemnitor shall have been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and Indemnitee, the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify Indemnitor will be entitled, within one hundred twenty (120) days after receipt of written notice from the Indemnitee therefor (subject to verification that of the commencement or assertion of any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof)such Third Party Claim, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying PartyIndemnitor) with counsel selected by the Indemnifying Party Indemnitor and reasonably satisfactory to the Indemnitee, for so long as the Indemnitor is conducting a good faith and diligent defense. Should the Indemnifying Party Indemnitor so elect to assume the defense of a Third Party Claim, :
(i) the Indemnifying Party Indemnitor will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided thatprovided, that if in any Indemnitee's reasonable judgment under applicable standards of professional conduct a conflict of interest exists between the Indemnitor and the Indemnitee in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying PartyIndemnitor) and one local counsel to represent such Indemnitee with respect to the matters as to which a conflict of interest exists and in that event the reasonable fees and expenses of each such separate counsel shall be paid by such Indemnifying Party. If Indemnitor; provided, further, that the Indemnifying Party assumes Indemnitor shall only be responsible for the defense reasonable fees and expenses of any Third Party Claim, one separate counsel (plus local counsels as required) for such Indemnitee;
(ii) the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence)expense, separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for Indemnitor;
(iii) the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party Indemnitor will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim Claim, as may be reasonably requested by the Indemnitee (including providing to the Indemnitee on reasonable request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, ; and
(iv) all the Indemnitees shall reasonably cooperate with the Indemnifying Party Indemnitor in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying PartyIndemnitor).
(c) If the Indemnifying Indemnitor does not elect to assume control of the defense of any Third Party unconditionally Claim within the 120-day period set forth above, or if such good faith and irrevocably diligent defense is not being or ceases to be conducted by the Indemnitor, the Indemnitee shall have the right, at the expense of the Indemnitor, after three (3) Business Days notice to the Indemnitor of its intent to do so, to undertake the defense of the Third Party Claim for the account of the Indemnitor (with counsel selected by the Indemnitee), and to compromise or settle such Third Party Claim, exercising reasonable business judgment.
(d) If the Indemnitor acknowledges in writing its obligation to indemnify the Indemnitee for a Third Third-Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof)Claim, the Indemnitee will agree to any settlement, compromise or discharge of such Third Third-Party Claim which that the Indemnifying Party Indemnitor may recommend and which recommend, exercising reasonable business judgment, that by its terms obligates the Indemnifying Party Indemnitor to pay the full amount of Damages Third Party Liabilities (whether through settlement or otherwise) in connection with such Third Third-Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability Third Party Liabilities in connection with such Third Third-Party Claim, ; provided, however, that, without the Indemnitee's ’s prior written consent, the Indemnifying Party Indemnitor shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge thatdischarge, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect that provides for injunctive or other nonmonetary relief affecting the Indemnitee. If the Indemnifying Party unconditionally and irrevocably Indemnitor acknowledges in writing its obligation to indemnify the Indemnitee for a Third Third-Party Claim, the Indemnitee shall not (unless required by lawLaw) admit any liability with respect to, or settle, compromise or discharge, such Third Third-Party Claim without the Indemnifying Party's Indemnitor’s prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. If the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11.
Appears in 1 contract
Sources: Finished Product Supply Agreement (Axcan Intermediate Holdings Inc.)
Procedures for Indemnification. (a) If a claim there occurs an event that either Party asserts is an indemnifiable event pursuant to Section 8.2 or demand is made against an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, by any Person who is not a party to this Agreement (or an Affiliate thereof) (a "Third Party Claim") as to which one or more parties (collectively8.3, the "Indemnifying Party seeking indemnification (the “Indemnified Party"”) may be shall promptly provide notice (the “Notice of Claim”) to the other Party or Parties obligated to provide indemnification pursuant (the “Indemnifying Party”). Providing the Notice of Claim shall be a condition precedent to this Agreement, such Indemnitee will notify any Liability of the Indemnifying Party in writinghereunder, and in reasonable detailthe failure to provide prompt notice as provided herein will relieve the Indemnifying Party of its obligations hereunder, but only if and to the extent that such failure materially prejudices the Indemnifying Party hereunder. If the Indemnified Party provides a Notice of Claim to the Indemnifying Party of the Third commencement thereof, the Indemnifying Party Claim shall be entitled to participate therein and, to the extent that it shall wish, to assume the defense thereof, with counsel reasonably promptly satisfactory to such Indemnitee and, after becoming aware notice from the Indemnifying Party to such Indemnified Party of such Third election so to assume the defense thereof, the Indemnifying Party Claimshall not be liable to the Indemnified Party hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnified Party, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that failure to give such notification will not affect if the indemnification provided hereunder except to the extent Indemnified Party reasonably believes that counsel for the Indemnifying Party shall have been actually prejudiced as a result of such failure.
(b) If a Third cannot represent both the Indemnified Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally because such representation would be reasonably likely to result in a conflict of interest, then the Indemnified Party shall have the right to its own defense by counsel (limited to one firm) of its own choosing and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnifying Party will be entitled to assume the defense thereof (at the sole cost and expense of the Indemnifying Party) . The Indemnified Party agrees to reasonably cooperate with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume its counsel in the defense of a Third Party Claimagainst any such asserted Liability. In any event, the Indemnifying Indemnified Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence)defense of such asserted Liability. No Indemnifying Party, separate in the defense of any Claim shall, except with the written consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnified Party from all Liability in respect to such Claim or that does not solely require the counsel employed payment of money damages by the Indemnifying Party. The Indemnifying Party agrees to afford the Indemnified Party and its counsel the opportunity to be present at, and to participate in, conferences with all Persons asserting any Claim against the Indemnified Party or conferences with representatives of or counsel for such Persons. In no event shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party, without the written consent of the Indemnified Party, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnified Party has failed to assume or (ii) injunctive relief affecting the defense thereof or if it does not expressly elect to assume the defense thereof Indemnified Party.
(including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense b) Upon receipt of any Third Party a Notice of Claim, the Indemnifying Party will promptly supply shall have twenty (20) calendar days to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee copies Indemnified Party (the “Contest Notice”); provided, however, that if, at the time a Notice of all correspondence and documents relating Claim is submitted to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses the amount of the Damage in respect thereof has not yet been determined, such twenty (20) day period in respect of, but only in respect of the amount of the Damage, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnified Party to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in setting forth the defense thereof (such cooperation to be at amount of the expense, including reasonable legal fees and expenses, Damage incurred by the Indemnified Party that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the Claim, and if the objection relates to the amount of the Damages asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnified Party), and any undisputed amount shall be promptly paid over to the Indemnified Party. If no such Contest Notice is given within such twenty (20) day period, the obligation of the Indemnifying Party to pay the Indemnified Party the amount of the Damage set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
(c) If the Indemnifying Party unconditionally fails to assume the defense of such Claim or, having assumed the defense and irrevocably acknowledges settlement of such Claim, fails reasonably to contest such Claim in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof)good faith, the Indemnitee will agree Indemnified Party, without waiving its right to any settlementindemnification, compromise or discharge may assume, at the cost of the Indemnifying Party, the defense and settlement of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, ; provided, however, that, without the Indemnitee's prior written consent, that (i) the Indemnifying Party shall not consent be permitted to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, join in the reasonable opinion defense and settlement of the Indemnitee could reasonably be expected such Claim and to materially and adversely affect the Indemnitee. If employ counsel at its own expense, (ii) the Indemnifying Party unconditionally shall cooperate with the Indemnified Party in the defense and irrevocably acknowledges settlement of such Claim in writing its obligation to indemnify any manner reasonably requested by the Indemnitee for a Third Indemnified Party Claim, and (iii) the Indemnitee Indemnified Party shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, settle such Third Party Claim without soliciting the views of the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld)Party and giving them due consideration.
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the The Indemnifying Party from whom shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five (5) business days of the date on which such indemnification is sought. The failure by any Indemnitee so to notify obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except pay to the extent that Indemnified Party, immediately upon demand, interest at the Indemnifying Party shall have been actually prejudiced rate of ten percent (10%) per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such failure. If the Indemnifying Party does not dispute its liability payment becomes delinquent to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration date of a 30-calendar-day period following the Indemnifying Party's receipt of notice payment of such claimdelinquent sums, the claim which interest shall be conclusively deemed a liability considered to be Damages of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Indemnified Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11.
Appears in 1 contract
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) If a claim or demand is made against an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, by any Person who is not a The party to this Agreement claiming indemnification (or an Affiliate thereof) (a the "Third Party ClaimIndemnified Party") as shall promptly give notice to which one or more parties the party from whom the indemnification is claimed (collectively, the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreementof any claim, whether between the parties or brought by a third party against the Indemnified Party, specifying (i) the factual basis for such Indemnitee will notify the Indemnifying Party in writingclaim, and in reasonable detail, (ii) the amount of the Third Party Claim claim, if known or reasonably promptly after becoming aware of such Third Party Claim; provided, however, that failure estimable. Failure to give such notification will prompt notice shall not affect the indemnification provided obligations hereunder except to the extent of actual prejudice.
(b) Following receipt of notice from the Indemnified Party of a claim, the Indemnifying Party shall have been actually prejudiced 30 days in which to make such investigation of the claim as a result the Indemnifying Party shall deem necessary or desirable. For the purposes of such failure.
(binvestigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If a Third the Indemnified Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally agree at or prior to the expiration of said 30-day period (or any agreed upon extension thereof) to the validity and irrevocably acknowledges in writing its obligation amount of such claim, or if the Indemnifying Party does not respond to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof)such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim. If the Indemnifying 11 Party affirmatively rejects such claim within such 30-day period, the Indemnified Party will be free to seek judicial or other enforcement of its rights to indemnification under this Agreement.
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of the defense thereof (at of such claim, and the expense of Indemnified Party shall cooperate fully with the Indemnifying Party) with counsel selected , subject to reimbursement for any reasonable cost or expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Partycooperate. If the Indemnifying Party assumes elects to assume control of the defense of any Third Party Claimthird-party claim, the Indemnitee Indemnified Party shall have the right to participate in the defense thereof and to employ counsel, of such claim at its own expense; provided that if the Indemnified Party reasonably determines in good faith that there exist actual or potential conflicts of interest that make representation by the same counsel inappropriate, the Indemnified Party shall be entitled to employ separate counsel (but not more than one per jurisdiction) at the expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by and cost of the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, thatnot, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party ClaimIndemnified Party, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or dischargeoffer to settle or compromise any such claim or demand unless (i) the settlement agreement contains a complete and unconditional general release by the third party asserting the claim to all Indemnified Parties affected by the claim, (ii) the settlement agreement does not contain any sanction or restriction upon the conduct of any business by the Indemnified Party or its Affiliates and (iii) any amounts owing from any Indemnified Party pursuant to such Third Party Claim without compromise or settlement are subject to full indemnification by the Indemnifying Party's prior written consent Party (which consent shall not be unreasonably withheldhas acknowledged in writing its responsibility therefor and has demonstrated its financial ability to satisfy such obligation).
(d) Any claim on account of Damages which does not involve If a Third Party Claim shall be asserted claim, whether between the parties or by reasonably prompt written notice given by a third party, requires immediate action, the Indemnitee parties will make all reasonable efforts to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not dispute its liability elect to assume control or otherwise participate in the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration defense of a 30any third-calendar-day period following the Indemnifying Party's receipt of notice of such party claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay be bound by the amount of such liability to results obtained in good faith by the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Indemnified Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party claim and the Indemnitee shall proceed in good faith to negotiate a resolution be liable for all costs and expenses of such dispute and, if not resolved through negotiations by the 90th day after notice of defending such claim was given to the Indemnifying incurred by Indemnified Party, the Indemnifying Party including fees and the Indemnitee will resolve such dispute in accordance with Section 14.11disbursements of counsel.
Appears in 1 contract
Procedures for Indemnification. (a) If In order for a member of the Buyer Group or Seller Group, as the case may be, to be entitled to indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand is made against an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, by any Person who is not a third-party to this Agreement (or an Affiliate thereof) (a "Third Third-Party Claim") as to which one or more parties (collectively, the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement), such Indemnitee will indemnified party must notify the Indemnifying Party indemnifying parties in writing, and in reasonable detail, of the Third Third-Party Claim reasonably promptly within ten (10) days after becoming aware receipt by such indemnified party of such Third written notice of the Third-Party Claim; providedPROVIDED, howeverHOWEVER, that the failure to provide timely and proper notice shall not limit the indemnification provided hereunder, except that the indemnification hereunder shall be reduced by the financial effect, if any, of such failure (and except that an indemnifying party shall not be liable for any expenses incurred during the period following such 10-day period in which the indemnified party shall have failed to give such notification will not affect notice). Thereafter, (i) the indemnification provided hereunder except indemnified party shall promptly deliver to the extent indemnifying parties (A) copies of all notices and documents (including court papers) received by the Indemnifying indemnified party relating to the Third-Party Claim and (B) all reasonably available information and documentation necessary to support and verify the claim asserted, and (ii) the indemnifying parties shall have been actually prejudiced as a result be given reasonable access to the books and records in the possession or control of the indemnified party or any of its Affiliates that any indemnifying party reasonably determines to be related to, or reasonably necessary in the defense of, such failureThird-Party Claim.
(b) If a Third Third-Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof)indemnified party, the Indemnifying Party indemnifying parties will be entitled entitled, at their own cost and expense, to participate in the defense thereof and, if they so choose, to assume the defense thereof (at the expense of the Indemnifying Party) with counsel reasonably selected by the Indemnifying Party and reasonably satisfactory to the Indemniteeindemnifying parties. Should the Indemnifying Party so elect to assume the defense of a Third Party ClaimIf an indemnifying party assumes such defense, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee indemnified party shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence)cost and expense, separate from the counsel employed by the Indemnifying Party. The Indemnifying Party indemnifying parties, it being understood that the indemnifying parties shall control such defense and will not be liable to the indemnified party for any legal expenses incurred by the indemnified party subsequent to the assumption by an indemnifying party of the defense; provided, HOWEVER, that the indemnifying parties shall be liable for the reasonable fees of separate counsel for the indemnified party (which counsel shall be reasonably acceptable to the indemnifying parties) if, in the reasonable opinion of outside counsel for the indemnified party (which counsel and opinion shall be reasonably acceptable to the indemnifying parties), representation of the indemnifying parties and the indemnified party in such matter by one (1) counsel would create a conflict of interest such that representation of the indemnifying parties and the indemnified party in such matter by separate counsel is required under applicable ethical rules governing legal representation. In any event, an indemnifying party shall not be liable under this Agreement for the fees and expenses of more than one (1) firm of counsel employed by (and representing all of) the Indemnitee for any period during which the Indemnifying Party has failed indemnified parties. Whether or not an indemnifying party chooses to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Third-Party Claim, all the Indemnitees parties hereto shall, and shall reasonably cause their respective Affiliates to, cooperate with the Indemnifying Party in the defense or prosecution thereof and to in good faith retain and furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested by a party hereto in connection therewith. If an indemnifying party chooses to defend or prosecute any Third-Party Claim, the indemnifying party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any such Third-Party Claim, or the entry of any judgment arising from, such Third-Party Claim; PROVIDED, HOWEVER, that the indemnifying party shall be authorized to so consent without the prior written consent of the indemnified party only if (such cooperation A) it shall pay or cause to be at paid all amounts arising out of such settlement or judgment concurrently with the expense, including reasonable legal fees and expenses, effectiveness thereof; (B) it shall not encumber any of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that assets of any losses indemnified party or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlementsignificant restriction or condition that would apply to such indemnified party or to the conduct of that indemnified party's business; (C) it shall obtain, compromise as a condition of any settlement or discharge other resolution, a complete and irrevocable release of each indemnified party in respect of such Third Party Claim which the Indemnifying Party may recommend claim; and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with (D) such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group settlement or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party judgment shall not consent to require any settlement(x) admission of liability, compromise fault or discharge wrongdoing by any indemnified party or impose any significant non-monetary obligation on any indemnified party (including the consent to entry such as, by way of any judgment)example, and the Indemnitee may refuse to agree to any such settlementnot in limitation, compromise injunctive relief) or discharge that, in the reasonable opinion of the Indemnitee (y) admission or statement that could reasonably be expected to materially and impair, disparage or otherwise adversely affect the Indemniteebusiness reputation of the indemnified party. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee No indemnified party shall not (unless required by law) admit any liability with respect to, to or settle, settle or compromise (or discharge, such Third consent to the settlement of or entry of any judgment arising from) any Third-Party Claim without the Indemnifying Party's express prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. If the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11indemnifying party.
Appears in 1 contract
Procedures for Indemnification. The following procedures shall govern and be a condition to the indemnification obligations arising out of this Section 6.7:
(ai) If Upon receipt by an Indemnified Party of notice of any action, suit, proceeding, claim, demand or assessment from a third party which may give rise to a claim or demand is made against an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, by any Person who is not a party to this Agreement (or an Affiliate thereof) (a "Third Party Claim") as to which one or more parties (collectivelyfor indemnification from the Indemnifying Party, the "Indemnifying Party") may be obligated Indemnified Party shall give prompt, written notice thereof to provide indemnification pursuant to this Agreement, such Indemnitee will notify the Indemnifying Party in writing, and indicating in reasonable detail, of detail the Third Party Claim reasonably promptly after becoming aware nature of such Third Party Claim; providedclaim and the basis therefor, however, provided that the failure to give such notification will notice shall not affect be a condition to the indemnification provided obligations hereunder except to the extent that the Indemnifying Party demonstrates actual damage caused by such failure. The Indemnifying Party shall be entitled to assume and control such defense at its expense with counsel selected by it and reasonably acceptable to the Indemnified Party. The Indemnified Party shall be entitled to participate therein at its own expense after such assumption.
(ii) With respect to third party claims or actions as to which the Indemnifying Party shall not have been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing exercised its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnifying Party will be entitled right to assume the defense thereof within a reasonable amount of time (at but not more than thirty (30) days after notice), the expense of the Indemnifying Party) with counsel selected by the Indemnifying Indemnified Party shall assume and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume control the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection and contest such action with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If as the Indemnifying Indemnified Party assumes the defense of any Third Party Claim, the Indemnitee shall have the right may choose that is reasonably acceptable to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed entitled, at its own expense, to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes participate in the defense of any Third Party Claim, such action or claim. In the event the Indemnifying Party will promptly supply elects not to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party participate in the defense thereof (of such cooperation action or claim, the Indemnified Party shall have full rights to dispose of such action and enter into any compromise or settlement; provided that such compromise or settlement shall be at reasonable under the expense, including reasonable legal fees circumstances and expenses, of the Indemnifying Party)in good faith.
(ciii) If Both the Indemnifying Indemnified Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlementcooperate with one another in good faith in connection with the defense, compromise or discharge (including the consent to entry settlement of any judgment), and the Indemnitee may refuse to agree to any such settlementthird party claim or action. Neither shall dispose of, compromise or discharge that, settle any such claim or action in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim manner without the Indemnifying Party's prior written consent (of the other party, which consent shall not be unreasonably withheld).
(div) Any With respect to any claim, other than a third party claim on account of Damages or action, for which does not involve a Third indemnity may be sought hereunder, the Indemnified Party Claim shall be asserted by reasonably prompt give prompt, written notice given by the Indemnitee thereof to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify indicating in reasonable detail the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. If the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount nature of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11basis therefor.
Appears in 1 contract
Sources: Merger Agreement (Ensys Environmental Products Inc /De/)
Procedures for Indemnification. (ai) If a Each Person seeking indemnification under this Article VII (the “Indemnified Party”) shall give prompt notice to the Person from whom indemnification is sought (the “Indemnifying Party”) of the assertion of any claim or demand is made against an Indemnitee, or an Indemnitee shall otherwise learn the commencement of an assertion, any Action by any Person who is not a third party to this Agreement (or an Affiliate thereof) (a "“Third Party Claim") as to which one or more parties (collectively”), the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement, such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, that the failure to give such notification will not affect the indemnification provided hereunder except unless the Indemnifying Party is materially prejudiced by such failure, and then only to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnifying Party will be entitled to assume the defense thereof (at the expense prejudice. Upon receipt of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense such notice of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which using counsel of its choice reasonably satisfactory to the Indemnified Party; provided, however, that the Indemnifying Party will obtain the prior written consent of the Indemnified Party (which may recommend and which by its terms obligates the Indemnifying Party to pay the full amount not be unreasonably withheld, delayed or conditioned) before entering into any settlement or compromise of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise permit a default or discharge (including the consent to entry of any judgment). Notwithstanding the foregoing, consent of an Indemnified Party shall not be required for any such settlement if (i) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party, and (ii) the Indemnitee settlement includes an unconditional release of such Indemnified Party and its Affiliates from all Liability relating to claims that are the subject matter of the Third Party Claim and does not include any statement as to or any admission of fault, culpability or failure to act by or on behalf of any Indemnifying Party or its Affiliates. In the event the Indemnified Party reasonably concludes that there may refuse be legal defenses available to agree it that are different from or in addition to those available to the Indemnifying Party, or there is otherwise an actual or potential conflict of interest between the Indemnified Party and Indemnifying Party, the Indemnified Party will have the right, at the Indemnifying Party’s reasonable expense, to select separate counsel and to otherwise separately defend itself but will not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld. With respect to any such settlementThird Party Claim subject to indemnification under this Agreement, compromise or discharge that, the Indemnified Party agrees to cooperate and cause its Affiliates to cooperate in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If good faith with the Indemnifying Party unconditionally in connection with the defense of such Third Party Claim. After any decision, judgment or award shall have been rendered by a Governmental Entity of competent jurisdiction, or a settlement shall have been consummated, or the Indemnified Party and irrevocably acknowledges in writing its obligation the Indemnifying Party shall have arrived at a mutually binding agreement with respect to indemnify a Third Party Claim hereunder, the Indemnitee Indemnified Party shall forward to the Indemnifying Party notice of any sums due and owing by the Indemnifying Party pursuant to this Agreement with respect to such matter.
(ii) In the event an Indemnified Party has a claim for indemnity under Section 7.1(a) or Section 7.1(b) against an Indemnifying Party that does not involve a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect toIndemnified Party agrees to give prompt notice in writing, or settleand as promptly as practicable, compromise or discharge, of such Third Party Claim without claim to the Indemnifying Party's prior written consent (, which consent notice shall not in no event be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee delivered to the Indemnifying Party from whom later than 30 days after the Indemnified Party first learns of the facts on which such claim is based (such 30 day period, the “Notice Period”). Such notice shall set forth in reasonable detail such claim and the basis for indemnification and the amount of such Damages incurred or that such Indemnified Party reasonably estimates in good faith is soughtlikely to be incurred in connection with such claim (taking into account the information then available to the Indemnified Party). The failure by any Indemnitee so to notify the Indemnifying Party as promptly as practicable within the Notice Period shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreementof its obligations hereunder, except to the extent that the Indemnifying Party such failure shall have been actually and adversely prejudiced by such failure. If the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11.
Appears in 1 contract
Sources: Asset Purchase Agreement (PHH Corp)
Procedures for Indemnification. (a) If a claim or demand is made against a Party (an “Indemnitee”), or an Indemnitee shall otherwise learn of an assertion, by any Person person who is not a party to this Agreement Party (or and who is not an Affiliate thereofaffiliate of a Party) (a "“Third Party Claim"”) as to which one or more parties a Party (collectively, the "“Indemnifying Party"”) may be obligated to provide indemnification pursuant to this Agreement, such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, that failure to give such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the . The Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the IndemniteeParty. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnitee shall will have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence)expense, separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all material developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof)Claim. If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall Indemnitee will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of if requested by the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the . No Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to ) of any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's ’s prior written consent (which consent shall not be unreasonably withheld)consent.
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. If the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11.
Appears in 1 contract
Procedures for Indemnification. (a) If a claim Company Event of Breach or demand is made against an Indemnitee, or an Indemnitee shall otherwise learn a Wexford Event of an assertion, by any Person who is not a party to this Agreement (or an Affiliate thereof) Breach (a "Third Party ClaimParty's Event of Breach") as to which one occurs or more parties is alleged and either the Company or the Wexford Indemnitees (collectively, the a "Indemnifying PartyParty Indemnitee") may be asserts that the other party has become obligated to provide indemnification it pursuant to this AgreementSection 7.1 or 7.2, or if any claim is begun, made or instituted as a result of which the other party may become obligated to a Party Indemnitee hereunder, such Party Indemnitee will notify shall give prompt notice to the Indemnifying other party. The Party in writing, and in reasonable detail, Indemnitee shall permit the other party (at its expense) to assume the defense of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claimany claim; provided, however, that failure to give such notification will not affect (a) the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with counsel for the other terms hereof), the Indemnifying Party will be entitled to assume party who shall conduct the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying PartyParty Indemnitee, (b) the Party Indemnitee may participate in such defense at its expense, and one local counsel (c) the omission by the Party Indemnitee to represent give notice as provided herein shall not relieve the other party of its indemnification obligation except to the extent that such Indemnitee omission results in a failure of actual notice to the other party and the other party is materially damaged as a result of such failure to give notice. Except with the prior written consent of the Party Indemnitee, the other party shall not, in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third such claim, consent to entry of any judgment or enter into any settlement that provides for injunctive or other non- monetary relief affecting the Party ClaimIndemnitee or that does not include as an unconditional term thereof the giving by each claimant or plaintiff to such Party Indemnitee of a release from all liability with respect to such claim or litigation. In the event that the Party Indemnitee shall in good faith determine that the conduct of the defense of any claim subject to indemnification hereunder or any proposed settlement of any such claim by the other party might be expected to affect adversely the ability of the Party Indemnitee to conduct its business, or that the Party Indemnitee may have available to it one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the other party in respect of such claim relating thereto, the Party Indemnitee shall have the right at all times to participate in take over and assume control over the defense thereof and defense, settlement, negotiations or litigation relating to employ counsel, any such claim at its own expense the sole cost of the other party (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the including without limitation reasonable attorneys' fees and expenses disbursements and other amounts paid as the result of counsel employed by such claim); provided, however, that if the Party Indemnitee for any period during which does so take over and assume control, the Indemnifying Party has failed Indemnitee shall not settle such claim without the prior written consent of every other party, such consent not to assume be unreasonably withheld. In the defense thereof or if it event that every other party does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes accept and continue the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. If the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, matter as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith have the full right to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of defend against any such claim was given and shall be entitled to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve settle or agree to pay in full such dispute in accordance with Section 14.11claim.
Appears in 1 contract
Procedures for Indemnification. (a) If a claim there occurs an event that either party asserts is an indemnifiable event pursuant to Section 6.1 or demand is made against an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, by any Person who is not a party to this Agreement (or an Affiliate thereof) (a "Third Party Claim") as to which one or more parties (collectively6.2, the "Indemnifying Party"party seeking indemnification (the “Indemnitee”) may be shall promptly provide notice (the “Notice of Claim”) to the other party or parties obligated to provide indemnification pursuant (the “Indemnifying Party”). Providing the Notice of Claim shall be a condition precedent to this Agreement, such Indemnitee will notify any Liability of the Indemnifying Party in writinghereunder, and in reasonable detail, the failure to provide prompt notice as provided herein will relieve the Indemnifying Party of its obligations hereunder but only if and to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the Third commencement thereof, the Indemnifying Party Claim shall be entitled to participate therein and, to the extent that it shall wish, to assume the defense thereof, with counsel reasonably promptly satisfactory to such Indemnitee and, after becoming aware notice from the Indemnifying Party to such Indemnitee of such Third election so to assume the defense thereof, the Indemnifying Party Claimshall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that failure to give such notification will not affect if the indemnification provided hereunder except to the extent Indemnitee reasonably believes that counsel for the Indemnifying Party shall have been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an cannot represent both the Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges because such representation would be reasonably likely to result in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claiminterest, such then the Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to defend, at the sole cost and expense of the Indemnifying Party) and one local counsel , such action by all appropriate proceedings. The Indemnitee agrees to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If reasonably cooperate with the Indemnifying Party assumes and its counsel in the defense of against any Third Party Claimsuch asserted liability. In any event, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentencedefense of such asserted liability. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have twenty (20) calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, separate from however, that if, at the counsel employed time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such twenty (20) day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such twenty (20) day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party. The Indemnifying Party Nothing herein shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which preclude the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes from assuming the defense of any Third Party Claim, the Indemnifying Party will promptly supply such Claim even if it/he/she has delivered a Contest Notice to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party)claim.
(c) If the Indemnifying Party unconditionally fails to assume the defense of such Claim or, having assumed the defense and irrevocably acknowledges settlement of such Claim, fails reasonably to contest such Claim in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof)good faith, the Indemnitee will agree Indemnitee, without waiving its right to any settlementindemnification, compromise or discharge may assume, at the cost of the Indemnifying Party, the defense and settlement of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, ; provided, however, that, without the Indemnitee's prior written consent, that (i) the Indemnifying Party shall not consent be permitted to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, join in the reasonable opinion defense and settlement of the Indemnitee could reasonably be expected such Claim and to materially and adversely affect the Indemnitee. If employ counsel at its own expense, (ii) the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify shall cooperate with the Indemnitee for a Third Party Claim, in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, settle such Third Party Claim without the Indemnifying Party's prior written consent (of the Indemnifying Party , which consent shall not be unreasonably unreasonable withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the The Indemnifying Party from whom shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five (5) business days of the date on which such indemnification is sought. The failure by any Indemnitee so to notify obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except pay to the extent that Indemnitee, immediately upon demand, interest at the Indemnifying Party shall have been actually prejudiced rate of ten percent (10%) per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such failure. If the Indemnifying Party does not dispute its liability payment becomes delinquent to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration date of a 30-calendar-day period following the Indemnifying Party's receipt of notice payment of such claimdelinquent sums, the claim which interest shall be conclusively deemed a liability considered to be Losses of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11Indemnitee.
Appears in 1 contract
Sources: Stock Purchase and Sale Agreement (Allegro Biodiesel Corp)
Procedures for Indemnification. (a) If Any Person making a claim for indemnification under this ARTICLE VII is referred to herein as an “Indemnified Party”. The Person from whom indemnification is sought is referred to herein as the “Indemnifying Party”. Promptly after receiving notice of any Proceeding, investigation, demand or demand is made other claim against an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, the Indemnified Party by any Person who is not a third party to this Agreement (or an Affiliate thereof) (a "“Third Party 37 Claim") as to which one or more parties (collectively”), the "Indemnifying Party"Indemnified Party shall provide written notice of such claim (any such written notice, an “Indemnification Notice”) may be obligated to provide indemnification pursuant to this Agreementto: (i) Purchaser, such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, of if the Third Party Claim reasonably promptly after becoming aware of arises under Section 7.2 and (ii) Stockholders’ Representative, if the Third Party Claim arises under Section 7.3. Each such Indemnification Notice shall describe in reasonable detail the applicable Third Party Claim, including the facts giving rise to such claim for indemnification hereunder, the amount or method of computation of the amount of such claim (if known) and such other information with respect thereto as the Indemnifying Party may reasonably request; provided, however, that the failure to give such notification will so notify an Indemnifying Party shall not affect relieve the indemnification provided Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party shall have been is actually prejudiced as a result of by such failure.
(b) If a Any Indemnifying Party shall be entitled to participate in the defense of such Third Party Claim is made against an Indemnitee at such Indemnifying Party’s expense, and the Indemnifying Party unconditionally and irrevocably acknowledges in writing at its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnifying Party will option shall be entitled to assume the defense thereof (at by appointing a reputable counsel to be the expense lead counsel in connection with such defense; provided, that the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ counsel of its choice for such purpose; provided, that the fees and expenses of such separate counsel shall be borne by the Indemnified Party and shall not be recoverable from such Indemnifying Party) with counsel selected by Party under this ARTICLE VII). Notwithstanding the foregoing, if the Indemnified Party shall have determined in good faith, and upon advice of counsel, that an actual conflict of interest makes representation of the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Indemnified Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with same counsel inappropriate, then the defense thereof; provided thatIndemnified Party may, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory upon notice to the Indemnifying Party) , engage separate counsel, and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such separate counsel shall be paid borne by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such extent the Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party)is indemnifiable hereunder.
(c) If Upon assumption of the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that defense of any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which by the Indemnifying Party, the Indemnified Party may recommend and which by its terms obligates the Indemnifying Party will not pay, or permit to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members be paid, any part of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without unless the Indemnitee's prior written consentIndemnifying Party consents in writing to such payment. Notwithstanding anything to the contrary herein, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment)settle, and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability Liability with respect to, or settle, compromise or discharge, such any Third Party Claim without the Indemnifying Party's prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed), unless the relief (i) consists solely of money damages (all of which the Indemnifying Party shall pay) and (ii) includes a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all Liability with respect thereto; provided, however, that if the Indemnified Party fails to consent to such settlement or compromise and such settlement or compromise does not include injunctive relief, the Liability of the Indemnifying Party with respect to such Third Party Claim under this Agreement shall be limited to the amount that would have otherwise been payable had the Indemnifying Party entered into such settlement or compromise.
(d) Any In all cases, the Indemnified Party shall provide its reasonable cooperation with the Indemnifying Party in defense of claims or litigation relating to Third Party Claims, including by making employees, information and documentation reasonably available. If the Indemnifying Party shall not, within 10 Business Days of receiving the Indemnification Notice, notify the Indemnified Party that it shall assume the defense of any such Third Party Claim, or fails to defend or withdraws from the defense of any such Third Party Claim, the Indemnified Party may defend against such matter in a manner consistent with the above provisions regarding conduct of 38 the defense by the Indemnified Party; provided, that the Indemnified Party may not settle any such matter without the written consent of the Indemnifying Party.
(e) The Indemnified Party shall provide written notice of claim on account of Damages which does that is not involve a Third Party Claim to: (i) Purchaser, if such claim arises under Section 7.2 and (ii) Stockholders’ Representative, if such claim arises under Section 7.3. Such claim shall be asserted by reasonably prompt written notice given by describe in reasonable detail the Indemnitee facts giving rise to any claim for indemnification hereunder, the amount or method of computation of the amount of such claim (if known) and such other information with respect thereto as the Indemnifying Party from whom such indemnification is sought. The may reasonably request; provided, that the failure by any Indemnitee to so to notify the an Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, of its obligations hereunder except to the extent that (and only to the extent that) the Indemnifying Party is materially prejudiced by such failure.
(f) Subject to this ARTICLE VII, after any final decision, judgment or award shall have been rendered by a Governmental Authority with competent jurisdiction (and a resolution of any appeal therefrom and the expiration of the time in which to appeal therefrom), or a settlement shall have been consummated, or the Indemnified Party and the Indemnifying Party shall have been actually prejudiced by such failure. If the Indemnifying Party does not dispute its liability to the Indemnitee arrived at a mutually binding agreement, in each case, with respect to a claim hereunder (i) if the claim made in such notice by notice for indemnification was brought pursuant to Section 7.2, Purchaser shall pay or cause to be paid all sums due and owing to the Indemnitee prior Stockholder Indemnified Party in immediately available funds to an account specified by the Stockholder Indemnified Party and (ii) if the claim for indemnification was brought pursuant to Section 7.3, Purchaser and Stockholders’ Representative shall cause the Escrow Agent to promptly pay to Purchaser (payable by wire transfer of immediately available U.S. funds in accordance with the written payment instructions furnished by Purchaser to the expiration Escrow Agent), from the Escrow Funds, any sums due and owing in accordance with this ARTICLE VII. Any balance remaining in the Escrow Fund, net of a 30-calendar-day period following any outstanding, unresolved claims brought pursuant to Section 7.3 shall automatically transfer to Stockholders’ Representative (for the Indemnifying Party's receipt benefit of notice of the Stockholders) and such claim, the claim funds shall be conclusively deemed a liability released and distributed to Stockholders’ Representative or its designee (for the benefit of the Indemnifying Party under this AgreementStockholders) after the Survival Date. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability Any amounts not disbursed with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith unresolved claims brought pursuant to negotiate a resolution of such dispute and, if not resolved through negotiations Section 7.3 by the 90th Purchaser Indemnified Parties against Stockholders the next day after notice of such claim was given the Survival Date shall be disbursed by the Escrow Agent promptly after the unresolved indemnification claims to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute which they relate are finally resolved in accordance with Section 14.11this ARTICLE VII. Notwithstanding anything to the contrary contained herein, in no event shall any Stockholder have any Liabilities under this Agreement (including under this ARTICLE VII) and the sole remedy of the Purchaser Indemnified Parties against the Stockholders shall be recovery against the Escrow Funds, if any.
Appears in 1 contract
Procedures for Indemnification. (a) THIRD PARTY CLAIMS. If a claim or demand is made against an IMS Indemnitee or a ST Indemnitee (each, an "Indemnitee, or an Indemnitee shall otherwise learn of an assertion, ") by any Person person who is not a party to this Agreement (or an Affiliate thereof) (a "Third Party Claim") as to which one or more parties (collectively, the "Indemnifying Party") may be obligated such Indemnitee is entitled to provide indemnification pursuant to this Agreement, such Indemnitee will shall notify the party which is or may be required pursuant to Section 3.1 or Section 3.2 hereof to make such indemnification (the "Indemnifying Party Party") in writing, and in reasonable detail, of the Third Party Claim reasonably promptly (and in any event within 15 business days) after becoming aware receipt by such Indemnitee of such written notice of the Third Party Claim; provided, however, that failure to give such notification will shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure.
failure (bexcept that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice). Thereafter, the Indemnitee shall deliver to the Indemnifying Party, promptly (and in any event within five business days) after the Indemnitee's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitee relating to the Third Party Claim. If a Third Party Claim is made against an Indemnitee and Indemnitee, the Indemnifying Party unconditionally shall be entitled to participate in the defense thereof and, if it so chooses and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof)therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and Party; provided that such counsel is not reasonably satisfactory objected to by the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will shall, within 30 days (or sooner if the nature of the Third Party Claim so requires), notify the Indemnitee of its intent to do so, and the Indemnifying Party shall thereafter not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided thatprovided, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, that such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local 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 which would make representation of both such parties by one counsel inappropriate, and in that such event the reasonable fees and expenses of each such separate counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claimsuch defense, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, subject to the proviso of the preceding sentence, at its own expense (except as otherwise provided in the preceding sentence)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 fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect (other than during the period prior to assume the defense thereof (including acknowledging its indemnification obligation time the Indemnitee shall have given notice of the Third Party Claim as aforesaidprovided above). If the Indemnifying Party assumes so elects to assume the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies all of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation or prosecution thereof, including by providing or causing to be at the expenseprovided, including reasonable legal fees Records and expenses, witnesses as soon as reasonably practicable after receiving any request therefor from or on behalf of the Indemnifying Party).
(c) . If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee responsibility for a Third Party Claim, then in no event will the Indemnitee admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim (subject without the Indemnifying Party's prior written consent; provided, however, that the Indemnitee shall have the right to verification that any losses settle, compromise or costs discharge such Third Party Claim without the consent of the Indemnifying Party if the Indemnitee releases the Indemnifying Party from its indemnification obligation hereunder with respect to such Third Party Claim and such settlement, compromise or discharge would not otherwise adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges in respect thereof constitute Damages and compliance with the other terms hereof)writing liability for a Third Party Claim, the Indemnitee will agree to any settlement, compromise or discharge of such a Third Party Claim which that the Indemnifying Party may recommend and which that by its terms obligates the Indemnifying Party to pay the full amount of Damages the liability in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, Claim and that would not otherwise adversely affect the Indemnitee; provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and that the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of if the Indemnitee could reasonably agrees that the Indemnifying Party's indemnification obligation with respect to such Third Party Claim shall not exceed the amount that would be expected required to materially and adversely affect the Indemnitee. If be paid by or on behalf of the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation connection with such settlement, compromise or discharge. If an Indemnifying Party elects not to indemnify assume the Indemnitee for defense of a Third Party Claim, the or fails to notify an Indemnitee shall not (unless required by law) admit any liability with respect toof its election to do so as provided herein, such Indemnitee may compromise, settle or settle, compromise or discharge, defend such Third Party Claim without Claim. Notwithstanding the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify foregoing, the Indemnifying Party shall not relieve be entitled to assume the Indemnifying defense of any Third Party Claim (and shall be liable for the fees and expenses of counsel incurred by the Indemnitee in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with its counsel, cannot be separated from any liability which it may have to related claim for money damages. If such Indemnitee under this Agreementequitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, except to the extent that the Indemnifying Party shall have been actually prejudiced be entitled to assume the defense of the portion relating to money damages.
(b) In the event of payment by such failure. If the an Indemnifying Party does not dispute its liability to the any Indemnitee in connection with respect to the claim made in any Third-Party Claim, such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay be subrogated to and shall stand in the amount place of such liability 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 Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount cost and expense of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, in prosecuting any subrogated right or claim.
(c) The remedies provided in this Article III shall be cumulative and shall not preclude assertion by any Indemnitee of any other rights or the seeking of any and all other remedies against any Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11Party.
Appears in 1 contract
Procedures for Indemnification. (a) If Whenever a claim or demand is made against an Indemnitee, or an Indemnitee Claim shall otherwise learn of an assertion, by any Person who is not a party to this Agreement arise for indemnification under Section 9.02 (or an Affiliate thereof) (a "Third Party Claim") as to which one or more parties (collectivelyother than under Section 9.02(b)(iv)), the "Indemnifying Party"Person entitled to indemnification (the “INDEMNIFIED PARTY”) may be obligated to provide indemnification pursuant to this Agreement, such Indemnitee will shall promptly notify the Indemnifying Party in writing, and in reasonable detail, of from which indemnification is sought (the Third Party Claim reasonably promptly after becoming aware “INDEMNIFYING PARTY”) of such Third Party Claim and, when known, the facts constituting the basis of such Claim; provided, however, that failure to give such notification will not affect in the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense event of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee Claim for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence), separate indemnification resulting from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party a Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend by a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof)third party, the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Indemnified Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any give such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee thereof to the Indemnifying Party from whom such indemnification not later than 10 Business Days prior to the time any response to the third party Claim is sought. The required, if possible, and in any event within 15 Business Days following receipt of notice thereof (provided, that failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from of any liability which it may have to such Indemnitee under this Agreementthe Indemnified Party, except to the extent that the Indemnifying Party shall have has been actually and materially prejudiced by such failure). If Following receipt of notice of any such third party Claim, and unless counsel to the Indemnified Party shall have reasonably determined in good faith that the assumption of such defense by the Indemnifying Party does would be inappropriate due to a conflict of interest, the Indemnifying Party shall have the option, at its cost and expense, to assume the defense of such matter and to retain counsel (not dispute its liability reasonably objected to by the Indemnified Party) to defend any such claim or legal proceeding, and the Indemnifying Party shall not be liable to the Indemnitee Indemnified Party for any fees of other counsel or any other expenses (except as expressly provided to the contrary herein) with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice defense of such claimClaim, other than reasonable fees and expenses of counsel employed by the claim shall be conclusively deemed a liability of the Indemnifying Indemnified Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of for any notice in period during which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability not assumed the defense thereof. The Indemnified Party shall have the option of joining the defense of such Claim (which shall be at the sole cost and expense of the Indemnified Party) with counsel not reasonably objected to by the Indemnifying Party and counsel for each party shall, to the extent consistent with such counsel’s professional responsibilities, cooperate with the other party and any counsel designated by that party. In effecting the settlement or compromise of, or consenting to the entry of any judgment with respect to, any such Claim, the Indemnifying Party, or the Indemnified Party, as the case may be, shall act in good faith, shall consult with the other party and shall enter into only such settlement or compromise or consent to the entry of any judgment as the other party shall consent, such consent not to be unreasonably withheld, conditioned or delayed. An Indemnifying Party shall not be liable for any settlement, compromise or judgment not made in accordance with the preceding sentence.
(b) Buyer shall promptly and diligently defend, prosecute or settle the matters described in Section 9.02(b)(iv) (including the defense of any members of the Seller Indemnified Group that are defendants or respondents with respect to such claimmatters). If Buyer’s counsel shall have advised Buyer in writing, as provided abovein which case Buyer shall deliver a copy to the Indemnified Party, or if the Indemnified Party reasonably believes, that there is a conflict of interest that could make it inappropriate under applicable standards of professional conduct to have common counsel, the Indemnifying Indemnified Party may retain its own counsel with respect to such defense and Buyer shall pay the Indemnitee reasonable attorneys’ fees and expenses of counsel for such Indemnified Party. Buyer shall proceed obtain the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, delayed or conditioned, before entering into or making (or allowing the Companies to enter into or make), any settlement or compromise of the matters described in good faith Section 9.02(b)(iv) if (i) such settlement or compromise does not include a full release of the Indemnified Party, (ii) such settlement or compromise includes any non-monetary remedy binding on the Indemnified Party or (iii) the Indemnified Party reasonably believes that Buyer will not have the ability to negotiate a resolution satisfy fully its obligations pursuant to Section 9.02(b)(iv) at the time of such dispute andsettlement or compromise.
(c) After the Closing Date, if not resolved through negotiations by Seller and Buyer shall grant each other (or their respective designees), and Buyer shall cause the 90th day after notice Companies to grant to Seller (or its designees), access at all reasonable times to all of such claim was given the information, books and records relating to the Indemnifying PartyCompanies in its possession, and shall afford such party the Indemnifying Party right (at such party’s expense) to take extracts therefrom and to make copies thereof, to the Indemnitee will resolve extent reasonably necessary to implement the provisions of, or to investigate or defend any Claims arising under, this Agreement. Further, after the Closing Date, Buyer shall cause the Companies to grant to Seller (or its designees) the access and right to take extracts and make copies described in the preceding sentence for such dispute in accordance with Section 14.11other purposes as Seller may reasonably request.
Appears in 1 contract
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) If a claim or demand is made against an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, by any Person who is not a The party to this Agreement claiming the indemnification (or an Affiliate thereof) (a the "Third Party ClaimIndemnified Party") as shall promptly give notice to which one or more parties the party from whom the indemnification is claimed (collectively, the "Indemnifying Party") may of any claim, whether between the parties or brought by a third party against the Indemnified Party, specifying (i) the factual basis for such claim, and (ii) the amount of the claim. If the claim relates to an action, suit, or proceeding filed by a third party against the Indemnified Party such notice shall be obligated given by the Indemnified Party to provide indemnification pursuant to this Agreement, such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly within five (5) days after becoming aware written notice of such Third Party Claim; providedaction, howeversuit, that failure to give such notification will not affect the indemnification provided hereunder except or proceeding shall have been given to the extent Indemnified Party.
(b) Following receipt of notice from the Indemnified Party of a claim, the Indemnifying Party shall have been actually prejudiced thirty (30) days in which to make such investigation of the claim as a result the Indemnifying Party shall deem necessary or desirable. For the purposes of such failure.
(binvestigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If a Third the Indemnified Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and irrevocably acknowledges in writing its obligation amount of such claim, or if the Indemnifying Party does not respond to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof)such notice, the Indemnifying Party will shall immediately pay to the Indemnified Party the full amount of the claim. Buyer shall be entitled to apply any or all of the Accounts Receivable collected on behalf of Sellers to a claim as to which Buyer is entitled to indemnification hereunder. If the Indemnified Party and the Indemnifying Party do not agree within said period (or within any agreedupon extension thereof), the Indemnified Party may seek appropriate legal remedy.
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or to assume control of the defense thereof (at of such claim, and the expense of Indemnified Party shall cooperate fully with the Indemnifying Party) with counsel selected , subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Partycooperate. If the Indemnifying Party assumes elects to assume control of the defense of any Third Party Claimthird-party claim, the Indemnitee Indemnified Party shall have the right to participate in the defense thereof and to employ counsel, of such claim at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve If a Third Party Claim shall be asserted claim, whether between the parties or by reasonably prompt written notice given by a third party, requires immediate action, the Indemnitee parties will make all reasonable efforts to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not dispute its liability elect to assume control or otherwise participate in the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration defense of a 30any third-calendar-day period following the Indemnifying Party's receipt of notice of such party claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay be bound by the amount of such liability to results obtained in good faith by the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Indemnified Party has timely disputed its liability with respect to such claim, as .
(f) The indemnification rights provided above, the Indemnifying Party in Sections 10.2 and the Indemnitee 10.3 hereof shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given extend to the Indemnifying shareholders, directors, officers, members, partners, agents, employees, and representatives of the Indemnified Party, although for the Indemnifying Party purpose of the procedures set forth in this Section 10.4, any indemnification claims by such parties shall be made by and through the Indemnitee will resolve such dispute in accordance with Section 14.11Indemnified Party.
Appears in 1 contract
Sources: Asset Purchase Agreement (American Radio Systems Corp /Ma/)
Procedures for Indemnification. (a) If Promptly after receipt by an indemnified party pursuant to the provisions of Section 8.1 or 8.2 of notice of the commencement of any action involving the subject matter of the foregoing indemnity provisions, such indemnified party shall, if a claim or demand thereof is to be made against an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, by any Person who is not a indemnifying party to this Agreement (or an Affiliate thereof) (a "Third Party Claim") as to which one or more parties (collectively, the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreementthe provisions of Section 8.1 or 8.2, notify such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, indemnifying party of the Third Party Claim reasonably promptly after becoming aware of commencement thereof; but the omission to so notify such Third Party Claim; provided, however, that failure to give such notification indemnifying party will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if relieve it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, the indemnified party hereunder except to the extent that the Indemnifying Party shall have been actually indemnifying party was prejudiced by such failurefailure to so notify. If In case such action is brought against an indemnified party and it notifies the Indemnifying Party does not dispute its liability indemnifying party of the commencement thereof, the indemnifying party shall have the right to participate in, and, to the Indemnitee extent that it may wish, to assume the defense thereof, with respect counsel reasonably satisfactory to such indemnified party; provided, however, if the defendants in any action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the claim made indemnifying party, or if there is a conflict of interest which would prevent counsel for the indemnifying party from also representing the indemnified party, the indemnified party shall have the right to select separate counsel to participate in the defense of such action on behalf of such indemnified party. After notice by notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to the Indemnitee prior indemnified party pursuant to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice provisions of such claimSection 8.1 or 8.2 for any legal or other expense subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation, unless (a) the claim indemnified party shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute have employed counsel in accordance with Section 14.11.the proviso of the preceding sentence, (b) the
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Procedures for Indemnification. (a) If a any claim is asserted or demand any action or proceeding is made against an Indemnitee, or an Indemnitee shall otherwise learn brought in respect of an assertion, by any Person who is not a party to this Agreement (or an Affiliate thereof) (a "Third Party Claim") as to which one or more parties (collectivelyindemnity may be sought, the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement, such Indemnitee Indemnified Party will promptly notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware writing of such Third Party Claimasserted claim or the institution of such action or proceeding; providedPROVIDED, howeverHOWEVER, that the Indemnified Party's failure to give such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), so notify the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may might otherwise have to such Indemnitee under on account of this Agreementindemnity, except to the extent that the Indemnifying Party shall have has been actually materially prejudiced by such failure. If the Indemnifying Party does not dispute its liability failure to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreementnotify. The Indemnifying Party shall pay undertake full responsibility for the amount of such liability to the Indemnitee on demand or, in the case defense of any notice Third-Party Claim which, if successful, would result in which the amount an obligation of the indemnity under this Section 7. The Indemnifying Party may contest or settle any such claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If terms as the Indemnifying Party has timely disputed its liability with respect to such claimmay choose, as provided above, PROVIDED that the Indemnifying Party and will not have the Indemnitee shall proceed in good faith right, without the Indemnified Party's prior written consent, to negotiate settle any such claim if such settlement (i) arises from or is part of any criminal action, suit or proceeding, (ii) contains a resolution stipulation to, confession of such dispute andjudgement with respect to, if or admission or acknowledgement of, any liability or wrongdoing on the part of the Indemnified Party, (iii) relates to any Tax matters, (iv) provides for injunctive relief, or other relief or finding other than money damages, which is binding on the Indemnified Party, or (v) does not resolved through negotiations contain an unconditional release of the Indemnified Party. Such defense will be conducted by reputable attorneys retained by the 90th day after notice of such claim was given to Indemnifying Party at the Indemnifying Party's cost and expense, but the Indemnified Party will have the right to participate in such proceedings and to be separately represented by attorneys of its own choosing. The Indemnified Party will be responsible for the costs of such separate representation unless the Indemnified Party will have reasonably concluded that the interests of the Indemnified Party and the Indemnifying Party in the action conflict in such a manner and to such an extent as to make advisable, consistent with applicable standards of professional responsibility, the Indemnitee retention of separate counsel for the Indemnified Party, in which case the Indemnifying Party will resolve such dispute in accordance with Section 14.11pay for one (but not more than one) separate counsel chosen by the Indemnified Party.
Appears in 1 contract
Sources: Merger Agreement (International Remote Imaging Systems Inc /De/)
Procedures for Indemnification. (a) THIRD PARTY CLAIMS. If a claim or demand is made against an IMS Indemnitee or a ST Indemnitee (each, an "Indemnitee, or an Indemnitee shall otherwise learn of an assertion, ") by any Person person who is not a party to this Agreement (or an Affiliate thereof) (a "Third Party Claim") as to which one or more parties (collectively, the "Indemnifying Party") may be obligated such Indemnitee is entitled to provide indemnification pursuant to this Agreement, such Indemnitee will shall notify the party which is or may be required pursuant to Section 3.1 or Section 3.2 hereof to make such indemnification (the "Indemnifying Party Party") in writing, and in reasonable detail, of the Third Party Claim reasonably promptly (and in any event within fifteen (15) business days) after becoming aware receipt by such Indemnitee of such written notice of the Third Party Claim; providedPROVIDED, howeverHOWEVER, that failure to give such notification will shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure.
failure (bexcept that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice). Thereafter, the Indemnitee shall deliver to the Indemnifying Party, promptly (and in any event within five (5) business days) after the Indemnitee's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitee relating to the Third Party Claim. If a Third Party Claim is made against an Indemnitee and Indemnitee, the Indemnifying Party unconditionally shall be entitled to participate in the defense thereof and, if it so chooses and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof)therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and Party; PROVIDED that such counsel is not reasonably satisfactory objected to by the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will shall, within thirty 30 days (or sooner if the nature of the Third Party Claim so requires), notify the Indemnitee of its intent to do so, and the Indemnifying Party shall thereafter not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, PROVIDED that such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local 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 which would make representation of both such parties by one counsel inappropriate, and in that such event the reasonable fees and expenses of each such separate counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claimsuch defense, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, subject to the proviso of the preceding sentence, at its own expense (except as otherwise provided in the preceding sentence)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 fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect (other than during the period prior to assume the defense thereof (including acknowledging its indemnification obligation time the Indemnitee shall have given notice of the Third Party Claim as aforesaidprovided above). If the Indemnifying Party assumes so elects to assume the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies all of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation or prosecution thereof, including by providing or causing to be at the expense, including reasonable legal fees provided Records and expenses, witnesses as soon as reasonably practicable after receiving any request therefor from or on behalf of the Indemnifying Party).
(c) . If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee responsibility for a Third Party Claim, then in no event will the Indemnitee admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim (subject without the Indemnifying Party's prior written consent; PROVIDED, HOWEVER, that the Indemnitee shall have the right to verification that any losses settle, compromise or costs discharge such Third Party Claim without the consent of the Indemnifying Party if the Indemnitee releases the Indemnifying Party from its indemnification obligation hereunder with respect to such Third Party Claim and such settlement, compromise or discharge would not otherwise adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges in respect thereof constitute Damages and compliance with the other terms hereof)writing liability for a Third Party Claim, the Indemnitee will agree to any settlement, compromise or discharge of such a Third Party Claim which that the Indemnifying Party may recommend and which that by its terms obligates the Indemnifying Party to pay the full amount of Damages the liability in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without Claim and that would not otherwise adversely affect the Indemnitee's prior written consent; PROVIDED, the Indemnifying Party shall not consent to any settlementHOWEVER, compromise or discharge (including the consent to entry of any judgment), and that the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of if the Indemnitee could reasonably agrees that the Indemnifying Party's indemnification obligation with respect to such Third Party Claim shall not exceed the amount that would be expected required to materially and adversely affect the Indemnitee. If be paid by or on behalf of the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation connection with such settlement, compromise or discharge. If an Indemnifying Party elects not to indemnify assume the Indemnitee for defense of a Third Party Claim, the or fails to notify an Indemnitee shall not (unless required by law) admit any liability with respect toof its election to do so as provided herein, such Indemnitee may compromise, settle or settle, compromise or discharge, defend such Third Party Claim without Claim. Notwithstanding the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify foregoing, the Indemnifying Party shall not relieve be entitled to assume the Indemnifying defense of any Third Party Claim (and shall be liable for the fees and expenses of counsel incurred by the Indemnitee in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with its counsel, cannot be separated from any liability which it may have to related claim for money damages. If such Indemnitee under this Agreementequitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, except to the extent that the Indemnifying Party shall have been actually prejudiced be entitled to assume the defense of the portion relating to money damages.
(b) In the event of payment by such failure. If the an Indemnifying Party does not dispute its liability to the any Indemnitee in connection with respect to the claim made in any Third Party Claim, such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay be subrogated to and shall stand in the amount place of such liability 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 Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount cost and expense of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, in prosecuting any subrogated right or claim.
(c) The remedies provided in this Article III shall be cumulative and shall not preclude assertion by any Indemnitee of any other rights or the seeking of any and all other remedies against any Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11Party.
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Procedures for Indemnification. (a) If a claim or demand is made against Promptly after receipt by an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, by any Person who is not a indemnified party to this Agreement (or an Affiliate thereof) (a "Third Party Claim") as to which one or more parties (collectively, the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement, such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, provisions of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, that failure to give such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure.
Sections (b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If of this Section 7 of notice of a third party claim or the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation commencement of any third party action pursuant to indemnify the Indemnitee for a Third Party Claim provisions of such Sections 7(b) or (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereofc), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with indemnified party shall promptly notify such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members indemnifying party of the Buyer Group or commencement thereof; but the Seller Group, as the case may be) completely from all Liability in connection with omission to so notify such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall indemnifying party will not relieve the Indemnifying Party it from any liability which it may have to the indemnified party otherwise than hereunder unless the indemnified party is materially prejudiced thereby. In case such Indemnitee under this Agreementaction is brought against an indemnified party and it notifies the indemnifying party of the commencement thereof, except the indemnifying party shall have the right to participate in, and, to the extent that it may wish, to assume the Indemnifying Party defense thereof, with counsel reasonably satisfactory to such indemnified party; provided, however, if the defendants in any action include both the indemnified party and the indemnifying party and the indemnified party shall have been actually prejudiced reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party, or if there is a conflict of interest which would prevent counsel for the indemnifying party from also representing the indemnified party, the indemnified party shall have the right to select separate counsel to participate in the defense of such action on behalf of such indemnified party. After notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to the indemnified party pursuant to the provisions of such Sections 7(b) or (c) for any legal or other expense subsequently incurred by such failure. If indemnified party in connection with the Indemnifying Party does defense thereof other than reasonable costs of investigation, unless (1) the indemnified party shall have promptly employed counsel in accordance with the proviso of the preceding sentence, (2) the indemnifying party shall not dispute its liability have employed counsel reasonably satisfactory to the Indemnitee with respect indemnified party to represent the claim made in such notice by notice to indemnified party within a reasonable time after the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability commencement of the Indemnifying Party under this Agreementaction, or (3) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand orNo indemnifying party, in the case defense of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim or litigation, shall, except with the consent of each indemnified party (such consent not to be unreasonably withheld), consent to entry of any judgment or such portion thereof) becomes finally determined. If enter into any settlement which does not include as an unconditional term thereof the Indemnifying Party has timely disputed its release from all liability with in respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11or litigation.
Appears in 1 contract
Procedures for Indemnification. (a) 7.3.1 If a claim or demand is made against an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, by any Person who is not a party to this Agreement (or an Affiliate thereof) thereto (a "Third Third-Party Claim") as to which one or more parties a party (collectively, the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement, such Indemnitee will notify the Indemnifying Party in writing, writing of the Third-Party Claim (and specifying in reasonable detaildetail the factual basis for the Third-Party Claim and to the extent known, the amount of the Third Third-Party Claim reasonably promptly Claim) within a reasonable period of time after becoming aware of such Third Third-Party Claim; provided, however, that failure to give such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure.
(b) 7.3.2 If a Third Third-Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof)therefor, the Indemnifying Party will be entitled entitled, within 30 days after receipt of written notice from the Indemnitee of the commencement or assertion of any such Third-Party Claim, to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Third-Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; , provided that, if in any Indemnitee's reasonable judgment based on advice of counsel a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such separate counsel shall be paid by such Indemnifying Party; provided, further, that the Indemnifying Party shall only be responsible for the reasonable fees and expenses of one separate counsel for such Indemnitee. If the Indemnifying Party assumes the defense of any Third Third-Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence)expense, separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof of any Third-Party Claim within the 30-day period specified above (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Third-Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Third-Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Third-Party Claim Claim, as may be reasonably requested by the Indemnitee (including including, without limitation, providing to the Indemnitee on reasonable request updates and summaries as to the status thereofthereto). If the Indemnifying Party chooses to defend a Third Third-Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) . If the Indemnifying Party does not elect to assume control of the defense of any Third-Party Claim within the 30-day period set forth above, the Indemnitee shall have the right to undertake the defense of the Third-Party Claim for the account of the Indemnifying Party, subject to the right of the Indemnifying Party, at its expense, to assume the defense of the Third-Party Claim at any time prior to final determination thereof by notifying the Indemnitee in writing of its election to so assume the defense of such Third-Party Claim and unconditionally and irrevocably acknowledging in writing its obligation to indemnify the Indemnitee therefor.
7.3.3 If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnitee for a Third Third-Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof)Claim, the Indemnitee will agree to any settlement, compromise or discharge of such Third Third-Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages (whether through settlement or otherwise) in connection with such Third Third-Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Third-Party Claim, ; provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge (i) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or (ii) that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and would otherwise adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Third-Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Third-Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(d) 7.3.4 Any claim on account of Damages which does not involve a Third Third-Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. If the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 3045-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability of the Indemnifying Party. If the Indemnifying Party does not notify the Indemnitee prior to the expiration of a 45-calendar-day period following its receipt of such notice that the Indemnifying Party disputes its liability to the Indemnitee under this Agreement, such claim specified by the Indemnitee in such notice shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Agreement and the Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. During such 45-calendar-day period, the Indemnifying Party shall be entitled to make any investigation of such claim that the Indemnifying Party deems reasonably necessary or desirable and, in connection with such investigation, the Indemnitee agrees to make available to the Indemnifying Party and its authorized representatives the information relied upon by the Indemnitee to substantiate such claim. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve be free to pursue such dispute in accordance with Section 14.11remedies as may be available to such parties under this Agreement or under applicable Law.
Appears in 1 contract
Sources: Asset Purchase Agreement (Knight Transportation Inc)
Procedures for Indemnification. (a) If Promptly after receipt by an ------------------------------ indemnified party under Section 9.01 or 9.02 of notice of the commencement of any action for which indemnification is available under Section 9.01 or 9.02, such indemnified party shall, if a claim or demand in respect thereof is to be made against an Indemniteeindemnifying party under such section, or an Indemnitee shall otherwise learn give notice to the indemnifying party of an assertionthe commencement thereof, by any Person who is not a party but the failure so to this Agreement (or an Affiliate thereof) (a "Third Party Claim") as to which one or more parties (collectively, the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement, such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, indemnifying party shall not relieve it of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, any liability that failure it may have to give such notification will not affect the indemnification provided hereunder an indemnified party except to the extent the Indemnifying Party shall have been actually prejudiced as a result indemnifying party demonstrates that the defense of such failure.
(b) If a Third Party Claim action is made prejudiced thereby. In case any such action shall be brought against an Indemnitee indemnified party and it shall give notice to the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify indemnifying party of the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof)commencement thereof, the Indemnifying Party will indemnifying party shall be entitled to participate therein and, to the extent that it shall elect, to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to such indemnified party and, after notice from the Indemnitee. Should the Indemnifying Party indemnifying party to such indemnified party of its election so elect to assume the defense of a Third Party Claimthereof, the Indemnifying Party will indemnifying party shall not be liable to the Indemnitee such indemnified party under such section for any legal fees of other counsel or any other expenses expenses, in each case subsequently incurred by the Indemnitee such indemnified party in connection with the defense thereof; provided that, other than reasonable costs of investigation and costs and expenses of legal counsel, if in any Indemnitee's reasonable judgment the indemnified party and the indemnifying party are both parties to the action and the indemnified party has been advised by counsel that there may be a conflict of interest exists in respect of such claim, such Indemnitee shall have one counsel's representing both it and the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Partyindemnifying party. If the Indemnifying Party an indemnifying party assumes the defense of such an action, (a) no compromise or settlement thereof may be effected by the indemnifying party without the indemnified party's consent (which shall not be unreasonably withheld, delayed or conditioned) unless (i) there is no finding or admission of any Third Party Claimviolation of law or any violation of the rights of any Person and no effect on any other claims that may be made against the indemnified party, and (ii) the sole relief provided is monetary damages that are paid in full by the indemnifying party, and (b) the indemnifying party shall have no liability with respect to any compromise or settlement thereof effected without its consent (which shall not be unreasonably withheld, delayed or conditioned). If notice is given by an indemnified party to an indemnifying party of the commencement of any action and it does not, within ten days after the indemnified party's notice is given, give notice to the indemnified party of its election to assume the defense thereof, the Indemnitee indemnifying party shall be bound by any determination made in such action or any compromise or settlement thereof effected by the indemnified party. Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that an action may materially and adversely affect it or its affiliates other than as a result of monetary damages, such indemnified party may, by notice to the indemnifying party, assume the exclusive right to defend, compromise or settle such action, but the indemnifying party shall have the right to participate in the defense thereof such action and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed not be bound by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses any determination of counsel employed by the Indemnitee for an action so defended or any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by settlement thereof effected without its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld, delayed or conditioned).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. If the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11.
Appears in 1 contract
Sources: Stock Purchase Agreement (Medical Resources Inc /De/)
Procedures for Indemnification. (a) If Promptly after receipt by a Buyer Indemnified Party or Seller Indemnified Party, as applicable (the “Indemnified Party”), of written notice of the assertion or the commencement of any claim or other Action by a third party with respect to any matter referred to in Sections 8.2(a), 8.2(b), or 8.2(c), or 8.3(a), 8.3(b) or 8.3(c), the Indemnified Party shall give written notice thereof to Seller or Buyer, as applicable (the “Indemnifying Party”), which notice shall include a reasonably detailed description of the claim or Action and the estimated amount of Losses asserted in connection therewith (to the extent known and quantifiable) and the basis for the claim or Action, and thereafter prior to such time that the Indemnifying Party assumes the defense thereof shall keep the Indemnifying Party reasonably informed with respect thereto; provided, however, that failure of the Indemnified Party to give such notice as provided herein shall not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party is actually prejudiced thereby.
(b) The Indemnifying Party shall be entitled to participate in the defense of such claim or Action giving rise to the Indemnified Party’s claim for indemnification at the Indemnifying Party’s expense, and at its option (subject to the limitations set forth below), to be exercised by giving written notice to the Indemnified Party, shall be entitled to assume the defense thereof at the Indemnifying Party’s expense by appointing a reputable counsel reasonably acceptable to the Indemnified Party to be the lead counsel in connection with such defense; provided, however, that:
(i) the Indemnified Party shall be entitled to participate in the defense of such claim or Action and to employ counsel of its choice for such purpose, so long as the fees and expenses of such separate counsel are borne by the Indemnified Party; provided, that if in the reasonable opinion of counsel to the Indemnified Party, there exists a conflict of interest between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be liable for the reasonable documented and out-of-pocket fees and expenses of counsel to the Indemnified Party;
(ii) the Indemnifying Party shall not be entitled to assume control of such defense (unless otherwise agreed to in writing by the Indemnified Party) and shall pay the reasonable and documented out-of-pocket fees and expenses of counsel retained by the Indemnified Parties if
(A) the claim for indemnification relates to or arises in connection with any criminal proceeding, Action or indictment; (B) the claim seeks an injunction or equitable relief against an Indemnified Party; or (C) the claim is reasonably expected to affect a Tax Return to be filed by the Indemnified Party;
(iii) at any time during the pendency of such claim or any litigation or other Action relating thereto, the Indemnified Party may assume control of the defense and settlement of such claim upon prior written notice to the Indemnifying Party if the Indemnifying Party fails to diligently defend such claim as reasonably determined in good faith by the Indemnified Party; and
(iv) if the Indemnifying Party assumes control of the defense of any such claim or Action, the Indemnified Party shall agree to any settlement, compromise or discharge of such claim or litigation that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of Losses in connection with such claim or litigation and does not impose any financial or other obligations or restrictions on the Indemnified Party in any manner; provided, however, that the Indemnifying Party shall obtain the prior written consent of the Indemnified Party before entering into any settlement of a claim or demand is made Action or ceasing to defend such claim or Action if, pursuant to or as a result of such settlement or cessation, injunctive or other equitable relief may be imposed against an Indemniteethe Indemnified Party or if such settlement does not expressly and unconditionally release the Indemnified Party from any and all liabilities with respect to such claim or Action.
(c) Notwithstanding, Sections 8.4(a) and 8.4(b), if the Buyer or an Indemnitee Seller (or any of their respective Affiliates) receives notice of a pending or threatened action, claim, audit, examination, investigation, contest, administrative proceeding or court proceeding relating to Taxes that could give rise to a claim for indemnification under this Article VIII (each, a “Tax Dispute”), then the party first receiving notice of such Tax Dispute shall otherwise learn provide prompt written notice thereof to the other party; provided, however, that the failure of an assertion, by any Person who is not a such party to give such prompt written notice shall not relieve the other party of any of its obligations under this Agreement Agreement, except to the extent such delay actually prejudices the other party. Buyer, at its own cost, shall control the defense of any Tax Dispute; provided, that: (i) Buyer shall keep Seller reasonably informed and consult with Seller with respect to any issue relating to such Tax Dispute; (ii) Seller shall have the right to fully participate in any such Tax Dispute at its own cost, and (iii) Buyer shall not agree to settle or an Affiliate thereofcompromise any such Tax Dispute without the prior written consent of Seller, which consent shall not be unreasonably withheld, conditioned or delayed. In the event of any inconsistency between the provisions of this Section 8.4(c), on the one hand, and the provisions of Sections 8.4(a) (a "Third Party Claim") as to which one or more parties (collectivelyand 8.4(b), on the other hand, the "Indemnifying Party"provisions of this Section 8.4(c) may shall control as it relates to Tax matters.
(d) In order for any Indemnified Party to be obligated entitled to provide any indemnification pursuant to this AgreementArticle VIII for a Loss that does not result from any claim or other Action by a third party, such Indemnitee will the Indemnified Party shall notify the Indemnifying Party in writing, and in reasonable detail, writing within fifteen (15) Business Days of the Third such Indemnifying Party Claim reasonably promptly after becoming aware of the event giving rise to such Third Party ClaimIndemnified Party’s claim for indemnification, specifying in reasonable detail the basis of such claim; provided, however, that failure to give such notification will shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure.
. The Indemnifying Party shall have thirty (b30) If a Third days after its receipt of such notice to respond in writing to such claim, during which thirty (30) day period the Indemnified Party Claim is made against an Indemnitee and shall give the Indemnifying Party unconditionally reasonable access to the books and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnifying Party will be entitled to assume the defense thereof (at the expense records of the Indemnifying Party) with counsel selected by Indemnified Party that evidence or support such claim or the Indemnifying Party and reasonably satisfactory act, omission or occurrence giving rise to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) upon reasonable advance notice and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Partyduring normal business hours. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. If the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed disputes its liability with respect to any such claim, as provided above, the Indemnifying Party and the Indemnitee Indemnified Party shall proceed to seek in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by for a period of thirty (30) days. If after the 90th day after notice conclusion of such claim was given thirty (30) day period the dispute has not been resolved, the Indemnified Party shall be free to pursue such remedies as may be available to the Indemnifying Party, Indemnified Party on the Indemnifying Party terms and subject to the Indemnitee will resolve such dispute in accordance with Section 14.11provisions of this Agreement.
Appears in 1 contract
Procedures for Indemnification. (a) If Promptly after receipt by a party entitled to indemnification hereunder (the “Indemnitee”) of written notice of the assertion or the commencement of any Proceeding by a third party with respect to any matter referred to in Section 9.2, the Indemnitee shall give written notice thereof to the party obligated to indemnify Indemnitee (the “Indemnitor”), which notice shall include a description of the Proceeding, the amount thereof (if known and quantifiable) and the basis for the Proceeding, and thereafter shall keep the Indemnitor reasonably informed with respect thereto; provided, that failure of the Indemnitee to give the Indemnitor notice as provided herein shall not relieve the Indemnitor of its obligations hereunder except to the extent that the Indemnitor is prejudiced thereby. A claim for indemnification for any matter not involving a third-party Proceeding may be asserted by notice to the party from whom indemnification is sought and shall be paid promptly after such notice.
(b) An Indemnitor shall be entitled to assume in the defense of any action, lawsuit, proceeding, investigation or other claim giving rise to an Indemnitee’s claim for indemnification at such Indemnitor’s expense by appointing a nationally recognized and reputable counsel reasonably acceptable to the Indemnitee to be the lead counsel in connection with such defense. Each Indemnitee shall have the right to employ separate counsel in such claim and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of each Indemnitee unless: (i) the Indemnitor has agreed to pay such expenses; or (ii) the Indemnitor has failed promptly to assume the defense and employ counsel reasonably satisfactory to such Indemnitee; or (iii) the named parties to any such action, claim or demand is made against an Indemnitee, or proceeding (including any impleaded parties) include an Indemnitee and such Indemnitee shall otherwise learn of an assertion, have been advised by any Person who is not a party to this Agreement counsel that either (or an Affiliate thereofx) (a "Third Party Claim") as to which there may be one or more parties legal defenses available to it which are different from or in addition to those available to the Indemnitor or (collectivelyy) a conflict of interest may exist if such counsel represents such Indemnitee and the Indemnitor; provided, that, if such Indemnitee notifies the Indemnitor in writing that it elects to employ separate counsel in the circumstances described in clauses (ii) or (iii) above, the "Indemnifying Party") may Indemnitor shall not have the right to assume the defense thereof and such counsel shall be obligated to provide indemnification pursuant to this Agreement, such Indemnitee will notify at the Indemnifying Party in writing, and in reasonable detail, expense of the Third Party Claim reasonably promptly after becoming aware of such Third Party ClaimIndemnitor; provided, however, that the Indemnitor shall not, in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be responsible hereunder for the fees and expenses of more than one such firm of separate counsel (in addition to any local counsel), which counsel shall be designated by such Indemnitee.
(c) If the Indemnitor assumes the defense of any such claim, the Indemnitor shall obtain the prior written consent of the Indemnitee before entering into any settlement of a claim or ceasing to defend such claim if, pursuant to or as a result of such settlement or cessation, injunctive or other equitable relief will be imposed against the Indemnitee or if such settlement does not expressly and unconditionally release the Indemnitee from all liabilities and obligations with respect to such claim with prejudice.
(d) A failure to give such notification timely notice as provided in this Section 9.3 will not affect the indemnification provided rights or obligations of any party hereunder except if, and only to the extent that, as a result of such failure, the Indemnifying Party shall have been party which was entitled to receive such notice was actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. If the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11.
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Procedures for Indemnification. (a) If Promptly after receipt by an indemnified party under Section 10.01 or 10.02 of notice of the commencement of any action for which indemnification may be available under Section 10.01 or 10.02, such indemnified party shall, if a claim or demand in respect thereof is to be made against an Indemniteeindemnifying party under such action, or an Indemnitee shall otherwise learn give notice to the indemnifying party of an assertionthe commencement thereof, by any Person who is not a party but the failure to this Agreement (or an Affiliate thereof) (a "Third Party Claim") as do so to which one or more parties (collectively, the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement, such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, indemnifying party shall not relieve it of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, any liability that failure it may have to give such notification will not affect the indemnification provided hereunder any indemnified party except to the extent the Indemnifying Party shall have been actually prejudiced as a result indemnifying party demonstrates that the defense of such failure.
(b) If a Third Party Claim action is made prejudiced thereby. In case any such action shall be brought against an Indemnitee indemnified party and it shall give notice to the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify indemnifying party of the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof)commencement thereof, the Indemnifying Party will indemnifying party shall be entitled to participate therein and, to the extent that it shall elect, to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to such indemnified party and, after notice from the Indemnitee. Should the Indemnifying Party indemnifying party to such indemnified party of its election so elect to assume the defense of a Third Party Claimthereof, the Indemnifying Party will indemnifying party shall not be liable to the Indemnitee such indemnified party under such section for any legal fees of other counsel or any other expenses expenses, in each case subsequently incurred by the Indemnitee such indemnified party in connection with the defense thereof; provided that, if in any Indemnitee's other than reasonable judgment a conflict costs of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) investigation and one local counsel to represent such Indemnitee and in that event the reasonable fees costs and expenses of each such legal counsel, if the indemnified party and the indemnifying party are both parties to the action and the indemnified party has been advised by counsel shall that there may be paid by such Indemnifying Partyone or more defenses available to it and not available to the indemnifying party. If the Indemnifying Party an indemnifying party assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense such an action (a) no compromise or settlement thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed may be effected by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, indemnifying party without the Indemniteeindemnified party's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
) unless (di) Any claim there is no finding or admission of any violation of law or any violation of the rights of any person and no effect on account of Damages which does not involve a Third Party Claim shall any other claims that may be asserted by reasonably prompt written notice given made against the indemnified party and (ii) the sole relief provided is monetary damages that are paid in full by the Indemnitee to indemnifying party and (b) the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party indemnifying party shall have been actually prejudiced by such failure. If the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its no liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11.to
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Procedures for Indemnification. (a) If In order for an Indemnified Party to be entitled to any indemnification provided for under this Agreement in respect of a claim written claim, suit or written demand is made against an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, by any Person who is not a party to this Agreement (or an Affiliate thereof) against the Indemnified Party (a "“Third Party Claim") as to which one or more parties ”), such Indemnified Party must notify the indemnifying party (collectively, the "“Indemnifying Party"”) may be obligated to provide indemnification pursuant to this Agreement, such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim and the facts known by the Indemnified Party relating thereto as promptly as reasonably promptly possible after becoming aware receipt by such Indemnified Party of such notice of the Third Party Claim; provided, however, that failure to give such notification will on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure. Thereafter, the Indemnified Party shall deliver to the Indemnifying Party, within five Business Days after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) delivered by such Person to the Indemnified Party relating to the Third Party Claim.
(b) If the Indemnifying Party, subject to the limitations set forth in this Article VII, has conceded liability to indemnify the Indemnified Party with respect to all Losses relating to such Third Party Claim, then the Indemnifying Party shall have 20 days after receipt of the Indemnified Party’s notice of a given Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing to elect, at his, her or its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof)option, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of any such Third Party Claim, in which case:
(i) the attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs incurred by the Indemnifying Party in connection with defending such Third Party Claim shall be payable by such Indemnifying Party;
(ii) the Indemnified Party shall not be entitled to be indemnified for any costs or expenses incurred by the Indemnified Party in connection with the defenses of such Third Party Claim following the Indemnifying Party’s assumption of such defense, except for actual costs incurred in connection with the Indemnifying Party’s requests for cooperation, which costs shall be reimbursed by the Indemnifying Party;
(iii) the Indemnified Party shall be entitled to monitor such defense at his, her or its sole expense; and
(iv) the Indemnified Party shall not enter into any agreement providing for the settlement or compromise of such Third Party Claim or the consent to the entry of a judgment with respect to such Third Party Claim without the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld. If the Indemnifying Party does not give notice to the Indemnified Party of his, her or its election to either assume or reject the defense of such Third Party Claim within 20 days after receipt of notice of such Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and bound for all purposes by any determination made in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep or any compromise or settlement effected by the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party)Indemnified Person.
(c) If (i) the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation has not conceded liability to indemnify the Indemnitee for a Third Indemnified Party Claim (subject with respect to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree all Losses relating to any settlement, compromise or discharge of such Third Party Claim which Claim, or (ii) if the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party elects not to pay the full amount of Damages in connection with defend such Third Party Claim Claim, then (A) the Indemnified Party shall diligently defend such Third Party Claim, and unconditionally (B) the Indemnified Party shall, subject to the limitations and irrevocably releases the Indemnitee (and the other members conditions set forth in this Article VII, be entitled to indemnification under this Article VII in respect of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without that the Indemnitee's prior written consent, the Indemnifying Indemnified Party shall not consent have no right to any settlement, compromise or discharge (including the consent to entry seek indemnification under this Article VII in respect of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim for any agreement providing for the settlement or compromise of such Third Party Claim or the consent to the entry of a judgment with respect to such Third Party Claim entered into without the Indemnifying Party's prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed).
(d) Any If any Indemnified Party asserts the existence of a claim on account of Damages which does not involve a giving rise to Losses (but excluding Third Party Claim Claims), such Party shall be asserted by reasonably prompt give written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification Party. Such written notice shall state that it is sought. The failure by any Indemnitee so being given pursuant to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this AgreementSection 7.4, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. If the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made specify, in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claimreasonable detail, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the nature and amount of the claim (or any portion thereof) is estimatedto the extent they are capable of determination). If such Indemnifying Party, on within 60 days after receipt of such later date when notice by Indemnifying Party and Indemnifying Party’s attorney, shall not give written notice to such Indemnified Party announcing such Indemnifying Party’s intent to contest such assertion of such Indemnified Party, such assertion shall be deemed accepted and the amount of such claim (or shall be deemed a valid claim and constitute Losses for all purposes under this Article VII. If, however, such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect contests such assertion of a claim by giving such written notice to such claimthe Indemnified Party within said period, as provided above, then the Indemnifying Party and the Indemnitee Parties shall proceed act in good faith to negotiate a resolution of reach agreement regarding such dispute and, if not resolved through negotiations by the 90th day after notice of claim. If litigation or arbitration shall arise with respect to any such claim was given to the Indemnifying Partyclaim, the Indemnifying prevailing Party shall be entitled to reimbursement of costs and the Indemnitee will resolve expenses incurred in connection with such dispute in accordance with Section 14.11litigation or arbitration (including reasonable attorneys’ fees and expenses and investigation costs).
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Procedures for Indemnification. (a) If a claim Any Person seeking any indemnification under this Article III (an “Indemnified Party”), acting through AGSA or demand AMPSA, as applicable, shall give the Party from which indemnification is made against being sought (an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, by any Person who is not a party to this Agreement (or an Affiliate thereof“Indemnifying Party”) prompt notice (a "Third “Claim Notice”) of any matter which such Indemnified Party Claim") as has determined has given or could give rise to which one or more parties (collectively, the "Indemnifying Party") may be obligated to provide a right of indemnification pursuant to under this Agreement, such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of such Third Party ClaimArticle III; provided, however, that failure to if an Indemnified Party shall receive written notice of any third party claim (a “Third Party Claim”), the Indemnified Party shall give such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result Claim Notice within twenty (20) days after receipt by the Indemnified Party of such failure.
notice. The Claim Notice shall (bi) If indicate whether the matter for which indemnification is sought (an “Indemnity Claim”) results from or arises out of a Third Party Claim is made against an Indemnitee and or a direct claim, (ii) describe with reasonable specificity the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnifying Party will be entitled to assume the defense thereof (at the expense nature of the Indemnifying PartyIndemnity Claim and (iii) with counsel selected by state the Indemnifying Party and reasonably satisfactory amount of Losses sought pursuant to such Indemnity Claim to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is soughtextent then known. The failure by any Indemnitee so to notify deliver or timely deliver the Indemnifying Party Claim Notice shall not relieve affect the Indemnifying rights of the Indemnified Party from any liability which it may have to such Indemnitee indemnification under this AgreementArticle III, except and only to the extent that the Indemnifying Party shall have been actually and materially prejudiced by reason of such failure. If the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11.
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Procedures for Indemnification.
(a) If Any Person making a claim for indemnification under Section 9.1, Section 9.2 or Section 9.3 (an “Indemnified Party”) shall notify the party against whom indemnification is sought (an “Indemnifying Party”) of the claim in writing promptly after receiving notice of any action, lawsuit, proceeding, investigation, demand is made or other claim against an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, the Indemnified Party by any Person who is not a third party to this Agreement (or an Affiliate thereof) (a "“Third Party Claim") as to which one or more parties (collectively, the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement, such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, that failure to give such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof”), describing the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to amount thereof (if known and quantifiable) and the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee basis thereof in connection with the defense thereofreasonable detail; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have that the right failure to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the an Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, of its obligations hereunder except to the extent that (and only to the extent that) such failure shall have caused the indemnifiable Losses to be greater than such Losses would have been had the Indemnified Party given the Indemnifying Party prompt notice hereunder. Except as otherwise provided in Section 9.7, any Indemnifying Party shall be entitled to participate in the defense of such Third Party Claim at such Indemnifying Party’s expense, and at its option shall be entitled to assume the defense thereof by appointing a reputable counsel reasonably acceptable to the Indemnified Party to be the lead counsel in connection with such defense; provided that the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ counsel of its choice for such purpose (provided that the fees and expenses of such separate counsel shall be borne by the Indemnified Party and shall not be recoverable from such Indemnifying Party under this ARTICLE IX). Notwithstanding the foregoing, if the Indemnified Party shall have determined in good faith and upon advice of counsel that (a) an actual or likely conflict of interest makes representation of the Indemnifying Party and the Indemnified Party by the same counsel inappropriate or (b) the defendants in, or targets of, any such action or proceeding include both the Indemnified Party and an Indemnifying Party, and the Indemnified Party shall have reasonably concluded that there may be legal defenses available to it or to other Indemnified Parties which are different from or additional to those available to the Indemnifying Party (in which case the Indemnifying Party shall not have been actually prejudiced the right to direct the defense of such action or proceeding on behalf of the Indemnified Party), then, in each case, the Indemnified Party may, upon notice to the Indemnifying Party, engage separate counsel, and the reasonable fees and expenses of such separate counsel shall be borne by the Indemnifying Party to the extent the Third Party Claim is indemnifiable hereunder (but only to the extent such separate counsel agrees to comply with any written guidelines established by the Indemnifying Party that are applicable to substantially all outside counsel retained by such failureIndemnifying Party, which guidelines shall be provided to the Indemnified Party promptly upon the Indemnifying Party’s receipt of notice that the Indemnified Party intends to engage separate counsel due to an actual or likely conflict of interest). Upon assumption of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of the Third Party Claim, unless the Indemnifying Party consents in writing to such payment or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such Liability. Notwithstanding anything to the contrary herein, the Indemnifying Party shall not compromise or settle, or admit any Liability with respect to, any Third Party Claim without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed), unless the relief consists solely of (i) money damages (all of which the Indemnifying Party shall pay) and (ii) includes a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all Liability with respect thereto. In all cases with respect to Third Party Claims, the parties shall provide reasonable cooperation to each other in defense of such Third Party Claims, including by making employees, information and documentation reasonably available (including for purposes of fact finding, consultation, interviews, depositions and, if required, as witnesses) and providing such information, testimony and access to their books and records, during normal business hours and upon reasonable notice, in each case as shall be reasonably necessary in connection with the contest or defense. If the Indemnifying Party does shall not dispute its liability reasonably promptly assume the defense of any such Third Party Claim, or fails to prosecute or withdraws from the Indemnitee defense of any such Third Party Claim, the Indemnified Party may defend against such matter, at the Indemnifying Party’s expense, in a manner consistent with the above provisions regarding conduct of the defense by the Indemnified Party; provided that the Indemnified Party may not settle any such matter without the written consent of the Indemnifying Party (which consent shall not be unreasonably withheld or delayed).
(b) The Indemnified Party shall notify the Indemnifying Party with respect to a Covered Claim even though the amount thereof plus the amount of other Covered Claims previously notified by the Indemnified Party in the aggregate is less than the Deductible.
(c) In the event that any party or any of its Affiliates alleges that it is entitled to indemnification hereunder, and that its claim made in is covered under more than one provision of this ARTICLE IX, such notice party or Affiliates shall be entitled to elect the provision or provisions under which it may bring a claim for indemnification.
(d) A claim for indemnification for any matter not involving a Third Party Claim may be asserted by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) party from whom indemnification is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11sought.
Appears in 1 contract
Sources: Investment Agreement
Procedures for Indemnification. (a) If a claim or demand is made against an Indemnitee, or an Any Indemnitee shall otherwise learn of an assertion, by any Person who is not a party entitled to this Agreement (or an Affiliate thereof) (a "Third Party Claim") as to which one or more parties (collectively, the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement, such Indemnitee will Service Mark ▇▇▇ense Agreement shall notify the Indemnifying Party in writing, and in reasonable detail, of the applicable Third Party Claim reasonably promptly (and in any event within 10 business days) after becoming aware receipt by such Indemnitee of such written notice of the Third Party Claim; provided, however, that failure to give such notification will shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure.
failure (bexcept that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice). Thereafter, the Indemnitee shall deliver to the Indemnifying Party, promptly (and in any event within 10 business days) after the Indemnitee's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitee relating to the Third Party Claim. If a Third Party Claim is made against an Indemnitee and Indemnitee, the Indemnifying Party unconditionally shall be entitled to participate in the defense thereof and, if it so chooses and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof)therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and Party; provided that such counsel is not reasonably satisfactory objected to by the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will shall not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claimsuch defense, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence)expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall have full control of such defense. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect (other than during the period prior to assume the defense thereof (including acknowledging its indemnification obligation time the Indemnitee shall have given notice of the Third Party Claim as aforesaidprovided above). If the Indemnifying Party assumes so elects to assume the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies all of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof or prosecution thereof. Such cooperation shall include the retention and (such cooperation to be at the expense, including reasonable legal fees and expenses, of upon the Indemnifying Party).
(c's request) If the provision to the Indemnifying Party unconditionally of records and irrevocably acknowledges in writing its obligation information which are reasonably relevant to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members making employees available on a mutually convenient basis to provide additional information of the Buyer Group any material provided hereunder. Whether or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, not the Indemnifying Party shall not consent to any settlement, compromise or discharge (including have assumed the consent to entry defense of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, in no event will the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account ; provided, however, that the Indemnitee shall have the right to settle, compromise or discharge such Third Party Claim without the consent of Damages which does the Indemnifying Party if the Indemnitee releases in writing the Indemnifying Party from its indemnification obligation hereunder with respect to such Third Party Claim and such settlement, compromise or discharge would not involve otherwise adversely affect the Indemnifying Party. If the Indemnifying Party shall have assumed the defense of a Third Party Claim, the Indemnitee will agree to any settlement, compromise or discharge of a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to that the Indemnifying Party from whom may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such indemnification is soughtThird Party Claim and releases the Indemnitee completely in connection with such Third Party Claim. The failure by any Indemnitee so to notify Notwithstanding the foregoing, the Indemnifying Party shall not relieve be entitled to assume the Indemnifying defense of any Third Party Claim (and shall be liable for the fees and expenses of counsel incurred by the Indemnitee in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with its counsel, cannot be separated from any liability which it may have to related Third Party Claim for money damages. If such Indemnitee under this Agreementequitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. If be entitled to assume the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability defense of the Indemnifying Party under this Agreementportion relating to money damages. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with 8 64 Section 14.114.04.
Appears in 1 contract
Sources: Agreement and Plan of Distribution (Itt Destinations Inc /Nv)
Procedures for Indemnification. (a) If a claim or demand is made against an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, by any Person who is not a party to this Agreement (or an Affiliate thereof) (a "Third Party Claim") as to which one or more parties (collectively, the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement, such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, that failure to give such notification will not affect -------- ------- the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the 62 Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the -------- ------- Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. If the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-30- calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11.. -------------
Appears in 1 contract
Sources: Asset Purchase Agreement (Tci Satellite Entertainment Inc)
Procedures for Indemnification. (a) If a A party seeking indemnification pursuant to Section 9.1, 9.2A or 9.2B (an "INDEMNIFIED PARTY") shall give prompt notice to the party from whom such indemnification is sought (the "INDEMNIFYING PARTY") of the assertion of any claim or demand is made against an Indemniteeassessment, or an Indemnitee shall otherwise learn the commencement of an assertionany action, suit, audit or proceeding, by any Person who is not a third party to this Agreement (or an Affiliate thereof) in respect of which indemnity may be sought hereunder (a "Third Party ClaimTHIRD PARTY CLAIM") as to which one or more parties (collectively), the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement, such Indemnitee and will notify give the Indemnifying Party in writingsuch information with respect thereto as the Indemnifying Party may reasonably request, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, that but no failure to give such notification will not affect notice shall relieve the indemnification provided Indemnifying Party of any liability hereunder (except to the extent the Indemnifying Party has suffered actual prejudice thereby). Thereafter, the Indemnified Party shall deliver to the Indemnifying Party, within seven days after the Indemnified Party's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. The Indemnifying Party shall have been actually prejudiced as a result the right, exercisable by written notice to the Indemnified Party within thirty days of such failure.
(b) If a receipt of notice from the Indemnified Party of the commencement of or assertion of any Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof)Claim, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with such Third Party Claim, using counsel selected by the Indemnifying Party and reasonably satisfactory acceptable to the IndemniteeIndemnified Party. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee Indemnified Party for any legal or other expenses subsequently incurred by the Indemnitee Indemnified Party in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If so long as the Indemnifying Party assumes is actively defending such Third Party Claim. Regardless of whether the Indemnifying Party elects to assume the defense of any such Third Party Claim, so long as the Indemnifying Party shall have paid all documented costs and expenses of the Indemnified Parties that are indemnifiable hereunder (and that are not in dispute in good faith) relating to the applicable Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Indemnified Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent, such consent not to be unreasonably withheld.
(b) The Indemnifying Party or the Indemnified Party, as the case may be, shall in any event have the right to participate, at its own expense, in the defense of any Third Party Claim which the other is defending. The Indemnifying Party shall bear the reasonable fees, costs and expenses of separate counsel of the Indemnified Party if: (i) the use of counsel chosen by the Indemnifying Party to represent the Indemnified Party would present such counsel with a conflict of interest, such conflict of interest is not remedied by waiver and the Indemnifying Party does not or cannot choose another counsel without a conflict of interest, (ii) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time after notice of the institution of such claim, or (iii) the Indemnifying party shall authorize the Indemnified Party to employ separate counsel at the Indemnifying Party's expense.
(c) The Indemnifying Party, if it shall have assumed the defense of any Third Party Claim in accordance with the terms hereof, shall have the right, upon thirty (30) days prior written notice to the Indemnified Party, to consent to the entry of judgment with respect to, or otherwise settle such Third Party Claim provided the Indemnifying Party satisfies and discharges such judgment or settlement unless (i) the Third Party Claim involves equitable or other non-monetary damages or (ii) in the reasonable judgment of the Indemnified Party such settlement would have a continuing material adverse effect on the Indemnified Party's or any of its affiliates' businesses (including any material impairment of its relationships with customers and suppliers), in which case such settlement only may be made with the written consent of the Indemnified Party, which consent shall not be unreasonably withheld).
(d) Any Whether or not the Indemnifying Party chooses to defend or prosecute any claim on account of Damages which does not involve involving a Third Party Claim third party, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals as may be asserted by reasonably prompt written notice given by the Indemnitee requested in connection therewith. Such cooperation shall include access during normal business hours afforded to the Indemnifying Party from whom to, and reasonable retention by the Indemnified Party of, records and information which are reasonably relevant to such indemnification is sought. The failure by Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any Indemnitee so to notify material provided hereunder, and the Indemnifying Party shall not relieve reimburse the Indemnifying Indemnified Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. If the Indemnifying Party does not dispute for all its liability to the Indemnitee with respect to the claim made reasonable out-of-pocket expenses in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11connection therewith.
Appears in 1 contract
Sources: Asset Purchase Agreement (Trans World Entertainment Corp)
Procedures for Indemnification. (a) If a claim or demand is made against an Indemnitee, or an Indemnitee Any Indemnified Party shall otherwise learn give the Indemnifying Hospital notice of an assertion, by any Person who is not a claims of any third party which are subject to the indemnification provided for in this Agreement (or an Affiliate thereof) (a "Third Party Claim") as to which one or more parties Article 9 (collectively, “Third-Party Claims”), stating the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreementamount of the Damages, such Indemnitee will notify if known, and method of computation thereof. The Indemnified Party shall give the Indemnifying Party in writing, and in reasonable detail, Hospital notice of the Third such Third-Party Claim reasonably promptly after becoming aware no later than 30 days from the receipt by the Indemnified Party of such Third Party Claimnotice; provided, however, that the failure to give provide such notification will timely notice shall not affect release the indemnification provided hereunder Indemnifying Hospital from any of its obligations under this Article 9 except to the extent the Indemnifying Party shall have been actually prejudiced as a result Hospital forfeits material rights or defenses by reason of such failure or is otherwise materially adversely prejudiced by such failure.
(b) If a Third Party Claim is made against an Indemnitee and the . The Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnifying Party will Hospital shall be entitled to assume and control the defense thereof (of such Third-Party Claim at its expense and through counsel reasonably acceptable to the Indemnified Party if it acknowledges, without qualification, its indemnification obligations hereunder and gives notice of its intention to do so to the Indemnified Party within 30 days of the receipt of such notice from the Indemnified Party. The Indemnified Party shall be entitled to retain counsel reasonably acceptable to the Indemnifying Hospital, at the expense of the Indemnifying Party) with Indemnified Party should the Indemnified Party determine such independent counsel selected by the Indemnifying Party and to be necessary. Each party agrees to reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection cooperate with the defense thereof; provided that, if other parties in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Third-Party Claim and keep make available to the Indemnitee fully informed of defending party, at the Indemnifying Hospital’s expense, all developments witnesses, pertinent records, materials and information in that party’s possession or under that party’s control relating to or in connection with such Third thereto as is reasonably required by the party defending the claim. No Third-Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If shall be settled or compromised by either the Indemnifying Hospital or the Indemnified Party chooses to defend a Third Party Claim, all without the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, written consent of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent party (which consent shall not be unreasonably withheldwithheld or delayed).
(d) . Any claim action by an Indemnified Party on account of Damages which does not involve result from a Third Party Claim (a “Direct Claim”) shall be asserted governed by reasonably prompt and contingent upon the following additional terms and conditions: If, after receiving notice of a Direct Claim, the Indemnifying Hospital does not provide written notice given by the Indemnitee to the Indemnifying Indemnified Party from whom that it disputes such Direct Claim within ten days after its receipt of notice thereof, such Direct Claim shall be conclusively deemed Damages subject to indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failurehereunder. If the Indemnifying Party Hospital does not dispute its liability to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendarDirect Claim within such ten-day period following period, the Indemnifying Party's receipt of notice of Hospital shall be deemed to have rejected such claim, in which case the claim Indemnified Party shall be conclusively deemed a liability free to pursue such remedies as may be available to the Indemnified Party on the terms and subject to the provisions of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11.
Appears in 1 contract
Sources: Affiliation Agreement
Procedures for Indemnification. (a) If Promptly after receipt by an indemnified party pursuant to the provisions of Section 8.2 of notice of the commencement of any action involving the subject matter of the foregoing indemnity provision, such indemnified party shall, if a claim or demand thereof is to be made against an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, by any Person who is not a indemnifying party to this Agreement (or an Affiliate thereof) (a "Third Party Claim") as to which one or more parties (collectively, the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreementthe provisions of Section 8.2, promptly notify such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, indemnifying party of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claimcommencement thereof; provided, however, that failure to give such notification will notice shall not affect the indemnifying party's obligation to provide indemnification provided hereunder except unless such failure actually prejudices the indemnifying party's ability to the extent the Indemnifying Party shall have been actually prejudiced as a result of defend adequately such failure.
(b) If a Third Party Claim action. In case such action is made brought against an Indemnitee indemnified party and it notifies the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify indemnifying party of the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof)commencement thereof, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee indemnifying party shall have the right to participate in in, and, to the extent that it may wish, to assume the defense thereof thereof, with satisfactory counsel (of the indemnifying party's choice); provided, however, if the defendants in any action include both the indemnified party and the indemnifying party, and the indemnified party shall have reasonably concluded that there may be legal defenses available to employ counselit which are different from or additional to those available to the indemnifying party, the indemnified party shall have the right, at its own expense (except as otherwise provided expense, to select separate counsel to participate in the preceding sentence), separate defense of such action on behalf of such indemnified party. After notice from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses indemnifying party to such indemnified party of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed its election so to assume the defense thereof thereof, the indemnifying party shall not be liable to the indemnified party pursuant to the provisions of such Section 8.2 for any legal or if it does not expressly elect to assume other expense subsequently incurred by such indemnified party in connection with the defense thereof (including acknowledging its indemnification obligation as aforesaid)other than reasonable costs of investigation. If the Indemnifying Party assumes No indemnifying party, in the defense of any Third Party Claimsuch claim or litigation, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claimshall, all the Indemnitees shall reasonably cooperate except with the Indemnifying Party in the defense thereof (such cooperation to be at the expenseconsent of each indemnified party, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to judgment or enter into any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account of Damages settlement which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by include as an unconditional term thereof the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. If the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability release of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such indemnified party from all liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11or litigation.
Appears in 1 contract
Procedures for Indemnification. (a) If Whenever a claim or demand is made against an Indemnitee, or an Indemnitee Claim shall otherwise learn of an assertion, by any Person who is not a party to this Agreement (or an Affiliate thereof) (a "Third Party Claim") as to which one or more parties (collectivelyarise for indemnification under Section 9.01, the "Person entitled to indemnification (the “Indemnified Party”) shall promptly notify in writing the Party from which indemnification is sought (the “Indemnifying Party"”) may be obligated to provide indemnification pursuant to this Agreement, such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim and, when known, the facts constituting the basis of such Claim; provided, however, that failure to give such notification will not affect in the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense event of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee Claim for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence), separate indemnification resulting from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party a Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend by a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof)third party, the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Indemnified Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any give such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee thereof to the Indemnifying Party from whom such indemnification not later than ten (10) Business Days prior to the time any response to the third party Claim is sought. The required, if possible, and in any event within fifteen (15) Business Days following receipt of notice thereof (provided, that failure by any Indemnitee so to timely notify the Indemnifying Party shall not relieve the Indemnifying Party from of any liability which it may have to such Indemnitee under this Agreementthe Indemnified Party, except to the extent that the Indemnifying Party shall have has been actually prejudiced by such failure). If Following receipt of notice of any such third party Claim, and unless counsel to the Indemnified Party shall have reasonably determined in good faith that the assumption of such defense by the Indemnifying Party does would be inappropriate due to a conflict of interest, the Indemnifying Party shall have the option, at its cost and expense, to assume the defense of such matter and to retain counsel (not dispute its liability reasonably objected to by the Indemnified Party) to defend any such claim or legal proceeding, and the Indemnifying Party shall not be liable to the Indemnitee Indemnified Party for any fees of other counsel or any other expenses (except as expressly provided to the contrary herein) with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice defense of such claimClaim, other than reasonable fees and expenses of counsel employed by the claim shall be conclusively deemed a liability of the Indemnifying Indemnified Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of for any notice in period during which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed not assumed the defense thereof. The Indemnified Party shall have the option of joining the defense of such Claim (which shall be at the sole cost and expense of the Indemnified Party) with its liability own counsel and counsel for each Party shall, to the extent consistent with such counsel’s professional responsibilities, cooperate with the other Party and any counsel designated by that Party. In effecting the settlement or compromise of, or consenting to the entry of any judgment with respect to to, any such claimClaim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, or the Indemnified Party, as the case may be, shall act in good faith, shall consult with the other Party and shall enter into only such settlement or compromise or consent to the entry of any judgment as the other Party shall consent, such consent not to be unreasonably withheld, conditioned or delayed. An Indemnifying Party and the Indemnitee will resolve such dispute shall not be liable for any settlement, compromise or judgment not made in accordance with Section 14.11the preceding sentence.
Appears in 1 contract
Procedures for Indemnification. (a) If Any Person making a claim for indemnification under Section 9.2 or Section 9.3 (an “Indemnified Party”) shall notify the party against whom indemnification is sought (an “Indemnifying Party”) of the claim in writing (such written notice, an “Indemnification Notice”) promptly after becoming aware of any action, lawsuit, proceeding, investigation, demand is made or other actual or potential indemnifiable claim against an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, the Indemnified Party by any Person who is not a third party to this Agreement (or an Affiliate thereof) (a "“Third Party Claim") as to which one or more parties (collectively, the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement, ”). Each such Indemnitee will notify the Indemnifying Party in writing, and Indemnification Notice shall describe in reasonable detail, the applicable Third Party Claim, including the facts giving rise to such claim for indemnification hereunder, the amount or method of computation of the amount of such claim (to the extent then known) and such other information with respect thereto as the Indemnifying Party may reasonably request; provided, that, the failure to so notify an Indemnifying Party promptly shall not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party is actually materially prejudiced by such failure. Any Indemnifying Party shall be entitled to participate in the defense of such Third Party Claim at such Indemnifying Party’s expense, and at its option shall be entitled to assume the defense thereof, upon written notice delivered to the Indemnified Party within twenty (20) days after receipt of an Indemnification Notice assuming responsibility, solely from and to the extent of the Indemnity Escrow Account, for Losses resulting from such Third Party Claim, by appointing a reputable counsel to be the lead counsel in connection with such defense; provided, that the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ counsel of its choice for such purpose (provided, that the fees and expenses of such separate counsel shall be borne by the Indemnified Party and shall not be recoverable from such Indemnifying Party). Notwithstanding the foregoing, an Indemnifying Party will not be entitled to assume the defense of any Third Party Claim if (i) such claim could result in criminal liability of, or equitable remedies against, the Indemnified Party; (ii) such claim does not solely seek and continue to solely seek monetary damages; (iii) such claim involves a customer, supplier or employee of the Indemnified Party; (iv) the Indemnified Party is a Purchaser Indemnified Party and the Purchaser reasonably believes potential Losses related thereto would likely exceed the amount remaining in the Indemnity Escrow Fund; or (v) the Indemnified Party reasonably believes that the interests of the Indemnifying Party and the Indemnified Party with respect to such claim are in conflict with one another, and as a result, the Indemnifying Party could not adequately represent the interests of the Indemnified Party in such claim. In the event, however, that the Indemnifying Party declines or fails to assume, or is not permitted to assume, the defense of the Third Party Claim on the terms provided above or to employ counsel reasonably promptly after becoming aware satisfactory to the Indemnified Party, in either case within such twenty (20) day period, or if the Indemnifying Party is not entitled to assume the defense of the audit, investigation, action or proceeding in accordance with the preceding sentence, then such Indemnified Party may employ counsel to represent or defend it in any such audit, investigation, action or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of such Third counsel for the Indemnified Party Claimas incurred to the extent required by this Article IX. The Indemnifying Party or the Indemnified Party (as the case may be) shall at all times use commercially reasonable efforts to keep the Indemnifying Party or the Indemnified Party (as the case may be) reasonably apprised of the status of the defense of any matter the defense of which it is maintaining and to cooperate in good faith with each other with respect to the defense of any such matter; provided, however, that failure no party will be required to give provide cooperation or furnish any records or other information that would (1) jeopardize the attorney client, work product or similar privilege of the Person in possession or control of such notification records or other information or (2) contravene any confidentiality agreement, nondisclosure agreement or similar obligation of the Person in possession or control of such records or other information. The Indemnified Party will not affect the indemnification provided hereunder except pay, or permit to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that be paid, any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnifying Party will be entitled to assume the defense thereof (at the expense part of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, unless the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges consents in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent payment (which consent shall not be unreasonably withheld, conditioned or delayed). Notwithstanding anything to the contrary herein, the Indemnifying Party shall not compromise or settle, or admit any Liability with respect to, any Third Party Claim without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed), unless the relief (i) consists solely of money damages that will be satisfied by the Indemnifying Party from the Indemnity Escrow Account, (ii) includes a provision whereby the plaintiff or claimant in the matter unconditionally releases the Indemnified Party and its officers, directors, managers, employees and Affiliates from all Liability with respect to the issues so settled, and (iii) does not contain any admission or statement suggesting any wrongdoing or liability on behalf of the Indemnified Party.
(db) Any Indemnified Party making a claim on account of Damages which against any Indemnifying Party hereunder that does not involve a Third Party Claim shall be asserted by reasonably prompt written deliver notice given by the Indemnitee of such claim promptly to the Indemnifying Party, describing in reasonable detail the facts giving rise to any claim for indemnification hereunder, the amount or method of computation of the amount of such claim (if known) and such other information with respect thereto as the Indemnifying Party from whom such indemnification is sought. The may reasonably request; provided, that, the failure by any Indemnitee to so to notify the an Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, of its obligations hereunder except to the extent that the Indemnifying Party shall have been is actually materially prejudiced by such failure. If the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11.
Appears in 1 contract
Sources: Membership Interest and Stock Purchase Agreement (Oxford Industries Inc)
Procedures for Indemnification. (a) If a claim for Damages (an “Indemnity Claim”), other than Third-Party Claims under Section 8.5(b) below, is to be made by a Person entitled to indemnification under this Article VIII (an “Indemnified Party”), such party shall give written notice briefly describing the claim and the total monetary damages sought (each, a “Notice”) to the Seller or demand is made against Buyer, as applicable (each an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, by any Person who is not a party to this Agreement (or an Affiliate thereof) (a "Third Party Claim"“Indemnifying Party”) as soon as practicable after such Indemnified Party becomes aware of any fact, condition or event which gives rise to Damages for which one or more parties (collectively, the "Indemnifying Party") indemnification may be obligated sought under this Article VIII. Any failure to provide indemnification pursuant submit any such notice of claim to this Agreement, such Indemnitee will notify the Indemnifying Party in writingshall not relieve any Indemnifying Party of any liability hereunder, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, that failure to give such notification will not affect the indemnification provided hereunder except to the extent that the Indemnifying Party demonstrates that the Indemnifying Party was actually prejudiced by such failure. The Indemnifying Party shall be deemed to have accepted the Notice and the Indemnifying Party shall be deemed to have been actually prejudiced as agreed to pay the Damages at issue if the Indemnifying Party does not send a result notice of such failuredisagreement to the Indemnified Party within thirty (30) calendar days after receiving the Notice. If the Indemnifying Party does not send a notice of disagreement to the Indemnified Party within thirty (30) calendar days after receiving the Notice, the Indemnifying Party shall promptly pay to the Indemnified Party the amount sufficient to pay the Damages.
(b) If an Indemnity Claim is to be made by an Indemnified Party entitled to indemnification hereunder in respect of, arising out of or involving a Third claim made by any third party (each, a “Third-Party Claim”) against the Indemnified Party, the Indemnified Party shall give a Notice to the Indemnifying Party as soon as practicable after becoming aware of such Third-Party Claim. The failure of any Indemnified Party to give timely Notice hereunder shall not affect rights to indemnification hereunder, except to the extent that the Indemnifying Party demonstrates that the Indemnifying Party was actually prejudiced by such failure. After such Notice, if the Indemnifying Party acknowledges in writing to an Indemnified Party that the Indemnifying Party is liable and has indemnity obligations for any Damages resulting from any such Third-Party Claim (and, in the case Seller is made against an Indemnitee the Indemnifying Party, if Buyer consents, which consent may be withheld in Buyer’s sole and absolute discretion, and, further, in the case Buyer is the Indemnifying Party, if Seller consents, which consent may be withheld in Seller’s sole and absolute discretion), then the Indemnifying Party shall be entitled, if it so elects at its own cost, risk and expense, (i) to take control of the defense and investigation of such Third-Party Claim, (ii) to employ and engage attorneys of its own choice (provided that such attorneys are reasonably acceptable to the Indemnified Party) to handle and defend the same, unless the named parties to such action or proceeding include the Indemnified Party and the Indemnifying Party, and any such Indemnified Party unconditionally and irrevocably acknowledges has been advised in writing its obligation by counsel that there may be one or more legal defenses available to indemnify the Indemnitee therefor (subject such Indemnified Party that are different from or additional to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory those available to the Indemnifying Party) and one local counsel to represent , in which event such Indemnitee and in that event the reasonable fees and expenses of each such counsel Indemnified Party shall be paid by entitled, at the Indemnifying Parties’ cost, risk and expense, to separate counsel of its own choosing, and (iii) to compromise or settle such Indemnifying claim, which compromise or settlement shall be made only with the written consent of the Indemnified Party, such consent not to be unreasonably withheld, provided that any such compromise or settlement shall provide for the absolute and unconditional release of the Indemnified Parties from any Liability with respect to such Third-Party Claim. If the Indemnifying Party assumes the defense of any Third a Third-Party ClaimClaim (to the extent permitted above), the Indemnitee Indemnified Party shall cooperate in all reasonable respects with the Indemnifying Party and its attorneys in the investigation, trial and defense of such Third-Party Claim and any appeal arising therefrom; provided, however, that the Indemnified Party may, at its own cost, participate in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom. The Parties shall cooperate with each other in any notifications to insurers. If the Indemnifying Party fails to assume the defense of such claim within fifteen (15) calendar days after receipt of the Notice (whether as a result of its election not to assume such defense or, as applicable, the refusal of Buyer or Seller to grant a request of the other to assume such defense), the Indemnified Party against which such claim has been asserted will have the right to participate in undertake, at the Indemnifying Parties’ cost, risk and expense, the defense, compromise or settlement of such Third-Party Claim on behalf of and for the account and risk of the Indemnifying Parties; provided, however, that such claim shall not be compromised or settled without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. If the Indemnified Party assumes the defense thereof and to employ counselof the claim, the Indemnified Party will keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement; provided, however, that the Indemnifying Party may, at its own expense (except as otherwise provided cost, participate in the preceding sentence)investigation, separate from the counsel employed by the Indemnifying Partytrial and defense of such lawsuit or action and any appeal arising therefrom. The Indemnifying Party shall be liable for the fees any settlement of any Third-Party Claim effected pursuant to and expenses of counsel employed by the Indemnitee in accordance with this Section 8.5 and for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim final judgment (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge right of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgmentappeal), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation agrees to indemnify and hold harmless the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Indemnified Party from whom such indemnification is sought. The failure and against any Damages by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. If the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice reason of such claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (settlement or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11judgment.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Ambassadors International Inc)
Procedures for Indemnification. (a) If 1. The procedures specified herein and Section 12.8 shall apply to any claims of third parties asserted in a claim governmental or demand is made against an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, by any Person who is not judicial forum for which a party intends to this Agreement (or an Affiliate thereof) seek indemnification hereunder, other than Excess Environmental Costs which shall be dealt with as provided in Sections 12.3, 12.4, 12.5 and 12.6 (a "Third THIRD-PARTY CLAIM"). The claiming party is referred to hereinafter as the "INDEMNIFIED PARTY" and the other party is referred to hereinafter as the "INDEMNIFYING PARTY."
2. In the event of a Third-Party Claim") as to which one or more parties (collectively, the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement, such Indemnitee will Indemnified Party shall notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably writing promptly after becoming aware the Indemnified Party has actual knowledge of such Third Party Claimclaims and the acts constituting the basis for such claim or threatened claim (the "NOTICE OF CLAIM"); provided, however, that failure to give such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee omission so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it the Indemnifying Party may have to such Indemnitee under this Agreement, the Indemnified Party except to the extent that the Indemnifying Party is materially prejudiced as a proximate result of the failure to give such notice promptly. The Notice of Claim shall have been actually prejudiced contain a summary of all material facts known to the Indemnified Party giving rise to such indemnification claim and the amount or an estimate of the amount of the liability arising therefrom if reasonably known.
3. The parties to this Agreement shall cooperate reasonably as necessary or appropriate to facilitate the defense of any third party claim or litigation subject hereto, including the provision of access to the counsel, accountants and other representatives of each party during normal business hours and access to all properties, personnel, and non-privileged books, tax records, contracts, commitments and other business records of such other party. The parties will furnish copies of all such documents as may reasonably be requested (certified, if requested). The party seeking cooperation and access shall reimburse the other party for all reasonable costs and expenses incurred by such failureparty in providing cooperation and access, unless the party providing such cooperation and access is the Indemnifying Party.
4. If the Indemnifying Party does not dispute fails to fulfill its liability to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claimobligations under this Article XII, the claim shall be conclusively deemed a liability of the Indemnifying Party Indemnified Party, in addition to any and all other remedies available to it, may assume its own defense without forfeiting any rights or remedies it has under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11.
Appears in 1 contract
Sources: Stock Purchase Agreement (Diamond Home Services Inc)
Procedures for Indemnification. (a) If a claim or demand is made against an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, by any Person who is not a party to this Agreement (or an Affiliate thereof) (a "Third Party Claim") as to which one or more parties (collectively, the "Indemnifying Party") may be obligated to provide The procedures for indemnification pursuant to this AgreementArticle 8 will be as follows:
(a) The party claiming indemnification (the “Indemnified Party”) shall promptly give notice to the party from whom indemnification is claimed (the “Indemnifying Party”) of any claim for Losses, such Indemnitee will notify whether arising between the Indemnifying Party parties or in writingconnection with a third-party claim made against the Indemnified Party, and specifying, in reasonable detail, the facts and circumstances of and the Third Party Claim reasonably promptly after becoming aware basis for such claim, as then known by the Indemnified Party. If an indemnification claim hereunder relates to a third-party claim made against the Indemnified Party, notice of such Third third party claim shall be given by the Indemnified Party Claim; provided, however, that failure to the Indemnifying Party promptly (but in any event within fifteen (15) days after written notice of such third party claim shall have been given to the Indemnified Party by such third party). Failure to give such notification will prompt notice pursuant to this Section 8.4(a) shall not affect the Indemnifying Party’s indemnification provided obligations hereunder in the absence of material prejudice thereto (in H:836720 49 which case the Indemnifying Party’s indemnification obligations shall only be reduced to the extent of such material prejudice).
(b) Following receipt of notice from the Indemnified Party of a claim, the Indemnifying Party will have forty-five (45) days during which to make such investigation of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or the Indemnifying Party’s authorized Representative(s) the information relied upon by the Indemnified Party to substantiate the claim (except to the extent such information is privileged). If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said forty-five (45)-day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim in accordance with Section 8.4(f). In the event the parties are unable to agree, either party may bring a Proceeding to resolve such dispute in accordance with Section 9.9.
(c) With respect to any claim by a third party for which an Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the right, at its own expense, to participate in or, if the Indemnifying Party unconditionally and irrevocably acknowledges in writing its so elects, to assume control of the defense of such claim through counsel of the Indemnifying Party’s choice reasonably acceptable to the Indemnified Party by providing written notice within forty-five (45) days following notice from the Indemnified Party acknowledging the Indemnifying Party’s obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages Indemnified Party, and compliance the Indemnified Party shall reasonably cooperate with the other terms hereof), the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected , subject to reimbursement for reasonable and documented actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claimcooperate; provided, that the Indemnifying Party will not be liable entitled to control, and the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with Indemnified Party will be entitled to have sole control over, the defense thereof; provided thator settlement of any claim if (i) such claim involves a criminal proceeding, if in any Indemnitee's reasonable judgment action, indictment, allegation or investigation, (ii) a conflict of interest between the Indemnifying Party and the Indemnified Party exists other than ordinary conflicts that arise under this Agreement and the other Transaction Documents, (iii) such claim involves any customers of the Indemnified Party or its Affiliates, (iv) the Indemnifying Party has not agreed and acknowledged in writing (for the benefit of the Indemnified Party) its unqualified obligation to indemnify the Indemnified Party as provided hereunder with respect of to such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory subject to the limitations set forth in this Article 8, (vi) such claim seeks an injunction or other equitable relief against the Indemnified Party or any of its Affiliates or (vii) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party) and one local counsel Party failed or is failing to represent vigorously prosecute or defend such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Partyclaim. If the Indemnifying Party assumes elects to assume control of the defense of any Third Party Claimthird-party claim, the Indemnitee shall Indemnified Party will have the right to participate in the defense thereof and to employ counsel, of such claim at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Partyexpense. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, thatnot, without the Indemnitee's prior written consentconsent of the Indemnified Party (such consent not to be unreasonably delayed, the Indemnifying Party shall not consent to any settlement, compromise withheld or discharge (including the consent to entry of any judgmentconditioned), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or dischargeoffer to settle or compromise any such claim or demand on a basis which would result in the imposition of a consent order, injunction or decree which would restrict the future activity or conduct of the Indemnified Party or any of its Affiliates or if such Third settlement or compromise does not include an unconditional release of the Indemnified Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld)for any liability arising out of such claim or demand or any related claim or demand.
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. If the Indemnifying Party does not dispute its liability elect to assume control or otherwise participate in the Indemnitee with respect defense of any third-party claim within forty-five (45) days following notice from the Indemnified Party (or such earlier date, if the failure to assume the claim made in defense on such notice by earlier date would materially impair the ability of the Indemnified Party to defend such claim), the Indemnified Party will (upon delivering written notice to the Indemnitee prior such effect to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim) have the right to undertake the defense, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (compromise or any portion thereof) is estimated, on such later date when the amount settlement of such claim (or such portion thereof) becomes finally determined. If all at the cost and expense of the Indemnifying Party), and the Indemnifying Party has timely disputed its liability will be bound by the H:836720 50 results obtained in good faith by the Indemnified Party with respect to such claim. The Indemnified Party will not settle, as provided abovecompromise or offer to settle or compromise any such claim or demand on a basis which would result in the imposition of a consent order, injunction or decree which would restrict the future activity or conduct of the Indemnifying Party and without the Indemnitee shall proceed in good faith to negotiate a resolution consent of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, such consent not to be unreasonably withheld or delayed.
(e) If any Buyer Group Member is entitled to recourse directly against any Seller pursuant to this Article 8 and is not able to recover the Indemnifying Party full amount of any such claim from such Seller, Buyer shall have the right to demand from such Seller the satisfaction of such claim through the delivery to Buyer of a number of Rollover Shares held by such Seller having an aggregate Rollover Share Value equal to the amount that such Buyer Group Member was unable to recover. Each Seller hereby agrees to any such delivery of Rollover Shares from such Seller to Buyer in satisfaction of any indemnification obligations hereunder and authorizes Buyer to transfer such Rollover Shares to Buyer or any of its Affiliates. Notwithstanding the Indemnitee will resolve foregoing, if a Seller fails to deliver such dispute Rollover Shares in accordance satisfaction of any indemnification obligations hereunder, without any further action by ▇▇▇▇▇, such Seller shall automatically forfeit all of such Sellers’ rights, title and interest in and with Section 14.11respect to such Rollover Shares, and Buyer shall be deemed the owner of such Rollover Shares for all purposes, and ▇▇▇▇▇ agrees to provide such Seller with written notice thereof promptly after any such forfeiture.
(f) Any indemnification payments made by Buyer pursuant to this Article 8 shall be effected by wire transfer of immediately available funds to an account or accounts designated by the Seller Group Member within three (3) Business Days after the determination thereof, whether pursuant to a final judgment, settlement or agreement among the parties. All indemnification payments by a Seller Group Member shall be satisfied through the delivery to the Buyer Group Member of a number of Rollover Shares held by such Seller having an aggregate Rollover Share Value equal to the amount of such indemnification obligation three (3) Business Days after the determination thereof, whether pursuant to a final judgment, settlement or agreement among the parties.
Appears in 1 contract
Procedures for Indemnification. (ai) If a claim or demand is made against an Indemnitee, or an Indemnitee shall receive notice or otherwise learn of an assertion, the assertion of any claim or commencement of any proceeding (including any governmental investigation) by any Person a person who is not a party to this Agreement (or an any Affiliate thereofof either party) (a "Third Third-Party Claim") as with respect to which one or more parties (collectively, the "an Indemnifying Party") Party may be obligated to provide indemnification pursuant to this Agreement, such Indemnitee will notify the shall give such Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably written notice thereof promptly after becoming aware of such Third-Party Claim setting forth the particulars as to such claim or proceeding in reasonable detail; provided that the failure of any Indemnitee to give notice as provided in this Section 4.4(a) shall not relieve the related Indemnifying Party of its obligations under this Article IV, unless such Indemnifying Party is actually prejudiced by such failure to give notice and then only to the extent of such actual prejudice.
(ii) An Indemnifying Party may, to the extent it wishes within thirty days of receipt of notice of a Third Party claim and at its cost and expense, elect to defend or to seek to settle or compromise any Third-Party Claim; provided, however, provided that failure to give the Indemnitee may participate in such notification will not affect the indemnification provided hereunder except to the extent the settlement or defense through its chosen counsel at its sole cost and expense. After notice from an Indemnifying Party shall have been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against to an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing of its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect election to assume the defense of a Third Third-Party Claim, the such Indemnifying Party will shall not be liable to the such Indemnitee under this Article IV for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by the such Indemnitee in connection with the defense thereof; provided that, that if the defendants in any such Third-Party Claim include both the Indemnifying Party and one or more Indemnitees and in any Indemnitee's reasonable judgment a conflict of interest between one or more of such Indemnitees and such Indemnifying Party exists in respect of such claim, such Indemnitee Indemnitees shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee Indemnitees and in that event the reasonable fees and expenses of each such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by such Indemnifying Party. If ; provided further if and to the Indemnifying Party assumes extent that there is a conflict of defenses or positions among the defense of any Third Party ClaimIndemnitees, the Indemnitee Indemnitees shall have the right to participate in the defense thereof and to employ retain such number of additional separate counsel, at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by reasonably satisfactory to the Indemnifying Party. The , as is reasonably necessary to avoid such conflicts, and the Indemnifying Party shall be liable responsible for the reasonable fees and expenses of such additional separate counsel; provided further that the Indemnitee may participate in the settlement or defense of a Third-Party Claim through counsel chosen by such Indemnitee if the fees and expenses of such counsel employed shall be borne by the Indemnitee for any period during which the such Indemnitee. If an Indemnifying Party has failed elects not to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third responsibility for defending a Third-Party Claim, the Indemnifying Party will promptly supply such Indemnitee may defend or seek to the Indemnitee copies of all correspondence and documents relating to compromise or in connection with settle such Third Third-Party Claim and keep but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. Notwithstanding the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consentforegoing, the Indemnifying Party shall not be liable for any settlement of any Third-Party Claim effected without its written consent. The Indemnifying Party shall not, except with the consent of the Indemnitee, (i) enter into any such settlement that does not include as an unconditional term thereof the giving by the person or persons asserting such Third-Party Claim to any settlementall Indemnitees an unconditional release from all Liability with respect to such Third-Party Claim, compromise or discharge (including the ii) consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(db) Any claim on account of Damages which a Loss that does not involve result from a Third Third-Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is soughtParty. The failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Such Indemnifying Party shall have been actually prejudiced by a period of thirty (30) days after the receipt of such failurenotice within which to respond thereto. If the such Indemnifying Party does not dispute its liability respond within such thirty-day period, such Indemnifying Party shall be deemed to the Indemnitee with respect have refused to the claim made in accept responsibility to make payment. If such notice by notice to the Indemnitee prior to the expiration of a 30-calendarIndemnifying Party does not respond within such thirty-day period following the Indemnifying Party's receipt of notice of or rejects such claimclaim in whole or in part, the claim such Indemnitee shall be conclusively deemed a liability of the Indemnifying Party free to pursue such remedies as may be available to such party under this Agreement or under applicable law (except as provided in the ADR Agreement. The Indemnifying Party shall pay ).
(c) In addition to any adjustments required pursuant to Section 4.3, if the amount of any Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such liability to reduction that has been received by the Indemnitee, less any expenses properly incurred in connection therewith, shall promptly be repaid by the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party.
(d) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall have all rights of subrogation 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 or against any other person. 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.
(e) Notwithstanding anything to the contrary herein or in the Other Agreements, the Indemnifying Party foregoing indemnification provisions and procedures shall apply to any other indemnification agreements herein or in the Indemnitee will resolve such dispute in accordance with Section 14.11Other Agreements.
Appears in 1 contract
Sources: Distribution Agreement (Consolidated Freightways Inc)
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) If a claim or demand is made against an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, by any Person who is not a The party to this Agreement claiming the indemnification (or an Affiliate thereof) (a the "Third Party ClaimIndemnified Party") as shall promptly give notice to which one or more parties the party from whom the indemnification is claimed (collectively, the "Indemnifying Party") may of any claim, whether between the parties or brought by a third party against the Indemnified Party, specifying (i) the factual basis for such claim, and (ii) the amount of the claim. If the claim relates to an action, suit, or proceeding filed by a third party against the Indemnified Party such notice shall be obligated given by the Indemnified Party to provide indemnification pursuant to this Agreement, such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly within five (5) days after becoming aware written notice of such Third Party Claim; providedaction, howeversuit, that failure to give such notification will not affect the indemnification provided hereunder except or proceeding shall have been given to the extent Indemnified Party.
(b) Following receipt of notice from the Indemnified Party of a claim, the Indemnifying Party shall have been actually prejudiced thirty (30) days in which to make such investigation of the claim as a result the Indemnifying Party shall deem necessary or desirable. For the purposes of such failure.
(binvestigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If a Third the Indemnified Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and irrevocably acknowledges in writing its obligation amount of such claim, or if the Indemnifying Party does not respond to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof)such notice, the Indemnifying Party will shall immediately pay to the Indemnified Party the full amount of the claim. Buyer shall be entitled to apply any or all of the Accounts Receivable collected on behalf of Sellers to a claim as to which Buyer is entitled to indemnification hereunder. If the 47 Indemnified Party and the Indemnifying Party do not agree within said period (or within any agreed-upon extension thereof), the Indemnified Party may seek appropriate legal remedy.
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or to assume control of the defense thereof (at of such claim, and the expense of Indemnified Party shall cooperate fully with the Indemnifying Party) with counsel selected , subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Partycooperate. If the Indemnifying Party assumes elects to assume control of the defense of any Third Party Claimthird-party claim, the Indemnitee Indemnified Party shall have the right to participate in the defense thereof and to employ counsel, of such claim at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve If a Third Party Claim shall be asserted claim, whether between the parties or by reasonably prompt written notice given by a third party, requires immediate action, the Indemnitee parties will make all reasonable efforts to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not dispute its liability elect to assume control or otherwise participate in the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration defense of a 30any third-calendar-day period following the Indemnifying Party's receipt of notice of such party claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay be bound by the amount of such liability to results obtained in good faith by the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Indemnified Party has timely disputed its liability with respect to such claim, as .
(f) The indemnification rights provided above, the Indemnifying Party in Sections 10.2 and the Indemnitee 10.3 hereof shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given extend to the Indemnifying shareholders, directors, officers, members, partners, agents, employees, and representatives of the Indemnified Party, although for the Indemnifying Party purpose of the procedures set forth in this Section 10.4, any indemnification claims by such parties shall be made by and through the Indemnitee will resolve such dispute in accordance with Section 14.11Indemnified Party.
Appears in 1 contract
Sources: Asset Purchase Agreement (Ez Communications Inc /Va/)
Procedures for Indemnification. (a) If An indemnification claim (an "INDEMNIFICATION CLAIM") will be made by the party to be indemnified (the "IDEMNITEE") by delivery of a written declaration to the party to indemnify (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 claim or demand is made against an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, by any Person who is from a person not a party to this Agreement (or an Affiliate thereof) affiliate thereof (a "Third Party ClaimTHIRD PARTY CLAIM") ), containing such other relevant information as to which one or more parties (collectively, the "Indemnifying Party") Indemnitee may be obligated to provide indemnification pursuant to this Agreement, such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of have concerning such Third Party Claim; provided, however, that failure to give such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure.
(b) If the Indemnification Claim involves a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges procedures set forth in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnifying Party SECTION 12.5 hereof will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred observed by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party)Indemnitor.
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for Indemnification Claim involves a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the matter other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for than a Third Party Claim, the Indemnitor will have 10 days to object to such Indemnification Claim by delivery of a written notice of such objection to Indemnitee shall specifying to the extent reasonable given the information available to Indemnitor the basis for such objection. Failure to timely so object will constitute acceptance of the Indemnification Claim by the Indemnitor and the Indemnification Claim will be paid in accordance with SECTION 12.4(d). If any objection is timely interposed by the Indemnitor and the dispute is not (unless required by law) admit any liability with respect to, or settle, compromise or dischargeresolved within 15 days from the delivery of such objection, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not dispute will be unreasonably withheld)resolved by litigation, or, if mutually agreeable by Indemnitor and Indemnitee, by arbitration or mediation.
(d) Any claim on account Upon determination of Damages which does not involve the amount of an Indemnification Claim (including a Third Party Claim shall be asserted Claim), whether by reasonably prompt written notice given agreement between Indemnitor and Indemnitee, by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreementan arbitration award or otherwise, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. If the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall Indemnitor will pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount Indemnification Claim within 10 days of the claim (or any portion thereof) date such amount is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed determined in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11writing.
Appears in 1 contract
Procedures for Indemnification. (a) No Party will be liable for any Claim for indemnification under this Article X unless written notice of a Claim for indemnification is delivered by the party seeking indemnification (the “Indemnified Party”) to the Party from whom indemnification is sought (the “Indemnifying Party”) prior to the expiration of the applicable survival period, if any, set forth in Section 10.1. If any third party notifies the Indemnified Party with respect to any matter which may give rise to a claim or demand is made against an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, by any Person who is not a party to this Agreement (or an Affiliate thereof) Claim for indemnification (a "“Third Party Claim"”) as to which one or more parties (collectivelyagainst the Indemnifying Party under this Article X, then the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement, such Indemnitee Indemnified Party will notify the Indemnifying Party promptly thereof in writingwriting and in any event within 15 days after receiving notice from a third party; provided that no delay on the part of the Indemnified Party in notifying the Indemnifying Party will relieve the Indemnifying Party from any obligation hereunder unless, and in then solely to the extent that, the Indemnifying Party is prejudiced thereby. All notices given pursuant to this Section 10.4 will describe with reasonable detail, specificity the Third Party Claim and the basis of the Indemnified Party’s Claim for indemnification. Once the Indemnified Party has given notice of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, that failure to give such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof)Party, the Indemnifying Party will be entitled to participate therein and, to the extent it chooses to do so, to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by of its choice; provided, however, the Indemnifying Indemnified Party may participate in (but not control) such defense, and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect after notice of its election to assume the defense of a Third Party Claimthereof, the Indemnifying Party will not be liable to the Indemnitee Indemnified Party for any legal or other expenses subsequently incurred by the Indemnitee Indemnified Party in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counselother than reasonable costs of investigation, at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which unless the Indemnifying Party has failed to does not actually assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge following notice of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failureelection. If the Indemnifying Party does not dispute assume the defense of such Third Party Claim, the Indemnified Party will have the right to undertake the defense of such Third Party Claim, by counsel or other representatives of its liability own choosing, on behalf of and for the account and risk of the Indemnifying Party (subject to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following limitations on the Indemnifying Party's receipt ’s obligations to indemnify otherwise set forth in this Article X and to the right of notice the Indemnifying Party to assume the defense of or opposition to such claimThird Party Claim at any time prior to settlement, compromise or final determination thereof).
(b) Neither the claim shall Indemnified Party nor the Indemnifying Party will consent to the entry of any judgment or enter into any settlement of any Third Party Claim that might give rise to liability of the other Party under this Article X without such Party’s consent, which will not be conclusively deemed a unreasonably withheld or delayed. If the Indemnifying Party elects to settle any such Third Party Claim, and the Indemnified Party refuses to consent to such compromise or settlement, then the liability of the Indemnifying Party under this Agreement. The Indemnifying to the Indemnified Party shall pay will be limited to the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If offered by the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11compromise or settlement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Alion Science & Technology Corp)
Procedures for Indemnification. (a) If a claim there occurs an event that either party asserts is an indemnifiable event pursuant to Section 5.1 or demand is made against an 5.2, the party seeking indemnification (the "Indemnitee, or an Indemnitee ") shall otherwise learn promptly provide notice (the "Notice of an assertion, by any Person who is not a party to this Agreement (or an Affiliate thereof) (a "Third Party Claim") as to which one the other party or more parties obligated to provide indemnification (collectively, the "Indemnifying Party") may ). Providing the Notice of Claim shall be obligated a condition precedent to provide indemnification pursuant to this Agreement, such Indemnitee will notify any Liability of the Indemnifying Party in writinghereunder, and in reasonable detail, the failure to provide prompt notice as provided herein will relieve the Indemnifying Party of its obligations hereunder but only if and to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the Third commencement thereof, the Indemnifying Party Claim shall be entitled to participate therein and, to the extent that it shall wish, to assume the defense thereof, with counsel reasonably promptly satisfactory to such Indemnitee and, after becoming aware notice from the Indemnifying Party to such Indemnitee of such Third election so to assume the defense thereof, the Indemnifying Party Claimshall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that failure to give such notification will not affect if the indemnification provided hereunder except to the extent Indemnitee reasonably believes that counsel for the Indemnifying Party shall have been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an cannot represent both the Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges because such representation would be reasonably likely to result in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claiminterest, such then the Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to defend, at the sole cost and expense of the Indemnifying Party) and one local counsel , such action by all appropriate proceedings. The Indemnitee agrees to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If reasonably cooperate with the Indemnifying Party assumes and its counsel in the defense of against any Third Party Claimsuch asserted liability. In any event, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence)defense of such asserted liability. No Indemnifying Party, separate in the defense of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the counsel employed payment of money damages by the Indemnifying PartyPerson. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for any period during which such Persons. In no event shall the Indemnifying Party has failed to assume Party, without the defense thereof written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or if it does not expressly elect to assume (ii) injunctive relief affecting the defense thereof Indemnitee.
(including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense b) Upon receipt of any Third Party a Notice of Claim, the Indemnifying Party will promptly supply shall have twenty (20) calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee copies (the "Contest Notice"); provided, however, that if, at the time a Notice of all correspondence and documents relating Claim is submitted to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses the amount of the Loss in respect thereof has not yet been determined, such twenty (20) day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the "Notice of Liability") has been sent or delivered by the Indemnitee to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in setting forth the defense thereof (such cooperation to be at amount of the expense, including reasonable legal fees and expenses, Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such twenty (20) day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party).
(c) If the Indemnifying Party unconditionally fails to assume the defense of such Claim or, having assumed the defense and irrevocably acknowledges settlement of such Claim, fails reasonably to contest such Claim in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof)good faith, the Indemnitee will agree Indemnitee, without waiving its right to any settlementindemnification, compromise or discharge may assume, at the cost of the Indemnifying Party, the defense and settlement of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, ; provided, however, that, without the Indemnitee's prior written consent, that (i) the Indemnifying Party shall not consent be permitted to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, join in the reasonable opinion defense and settlement of the Indemnitee could reasonably be expected such Claim and to materially and adversely affect the Indemnitee. If employ counsel at its own expense, (ii) the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify shall cooperate with the Indemnitee for a Third Party Claim, in the defense and settlement of such Claim in any manner reasonably requested by the Indemnitee and (iii) the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, settle such Third Party Claim without soliciting the views of the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld)Party and giving them due consideration.
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the The Indemnifying Party from whom shall make any payment required to be made under this Article in cash and on demand. Any payments required to be paid by an Indemnifying Party under this Article that are not paid within five (5) business days of the date on which such indemnification is sought. The failure by any Indemnitee so to notify obligation becomes final shall thereafter be deemed delinquent, and the Indemnifying Party shall pay to the Indemnitee, immediately upon demand, interest at the rate of ten percent (10%) per annum, not relieve to exceed the Indemnifying Party maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such delinquent sums, which interest shall be considered to be Losses of the Indemnitee.
(e) Notwithstanding any liability which it may have to such Indemnitee under this Agreementof the foregoing, except in the event of a Claim asserted by Buyer against Seller for indemnifiable Losses as a result of a breach of the representations and warranties set forth in Section 2.14, Buyer shall seek recovery, to the extent permitted under the Title Policies, from the Title Company; provided, however, that if Buyer has not recovered the Indemnifying Party shall have been actually prejudiced by such failure. If the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made amounts asserted in such notice by notice to Claim from the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claimTitle Company within one hundred eighty (180) days, the claim Buyer shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of able to assert such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute Claim against Seller in accordance with Section 14.11.the provisions of this Article V.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Martin Midstream Partners Lp)
Procedures for Indemnification. (a) If a claim or demand is made against an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, by any Person who is not a The party seeking indemnification pursuant to this Agreement Article (or an Affiliate thereof) (a the "Third Party ClaimIndemnified Party") as agrees to which one or more parties give prompt notice to the party providing indemnification pursuant to this Article (collectively, the "Indemnifying Party") of the assertion of any claim, or the commencement of any suit, action or proceeding in respect of which indemnity may be obligated to provide indemnification pursuant to sought under this Agreement, such Indemnitee will notify Article; provided that the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, that failure to give such notification will notice shall not affect the indemnification provided hereunder rights of the Indemnified Party except to the extent the Indemnifying Party shall have been actually is materially prejudiced as a result of by such failure.
(b) If a Third Party Claim is made against an Indemnitee . The notice shall state the information then available regarding the amount and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect nature of such claim, liability or expense and shall specify the provision or provisions of this Agreement under which the liability or obligation is asserted. The Indemnifying Party may at the request of the Indemnified Party participate in and control the defense of any such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Partysuit, action or proceeding at its own expense. If the Indemnifying Party assumes admits responsibility for indemnification with respect to such claim, the Indemnifying Party shall be entitled to control the defense of any Third Party Claimsuch suit, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, action or proceeding at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Partyexpense. The Indemnifying Indemnified Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in such defense; provided that the defense thereof (such cooperation Indemnified Party shall not be obligated to be at incur any out-of-pocket expenses except to the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If extent the Indemnifying Party unconditionally and irrevocably acknowledges agrees in writing its obligation to indemnify reimburse the Indemnitee Indemnified Party for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with such expenses as they are incurred. Without the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members written consent of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consentIndemnified Party, the Indemnifying Party shall not consent to settle or compromise any settlementclaim, compromise litigation or discharge (including the consent to entry proceeding in respect of any judgment)which indemnity may be sought hereunder; provided, and the Indemnitee may refuse to agree to any such settlementhowever, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by may settle or compromise any action if such failure. If settlement or compromise provides for an unconditional release of the Indemnifying Indemnified Party and does not dispute its liability to result in any restriction on the Indemnitee with respect to operation of the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Indemnified Party's receipt of notice of such claim, business in the claim shall be conclusively deemed a future or materially adversely affect the business reputation or tax liability of the Indemnifying Indemnified Party.
(b) A claim for indemnification for any matter not involving a third-party claim may be asserted by notice from the Indemnified Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11.
Appears in 1 contract
Sources: Merger Agreement (Moore Wallace Inc)
Procedures for Indemnification. (a) If a claim Seller's Event of Breach or demand is made against an Indemnitee, or an Indemnitee shall otherwise learn a Buyer's Event of an assertion, by any Person who is not a party to this Agreement (or an Affiliate thereof) Breach (a "Third Party ClaimParty's Event of Breach") as to which one occurs or more parties is alleged and a Buyer or a Seller Indemnitee (collectively, the a "Indemnifying PartyParty Indemnitee") may be asserts that the other party has become obligated to provide indemnification it pursuant to this AgreementSection 12.1 or 12.2, or if any Claim is begun, made or instituted as a result of which the other party may become obligated to a Party Indemnitee hereunder, such Party Indemnitee will notify shall give prompt notice to the Indemnifying other party. The Party in writing, and in reasonable detail, Indemnitee shall permit the other party (at its expense) to assume the defense of the Third Party Claim reasonably promptly after becoming aware of such Third Party any Claim; provided, however, that failure to give such notification will not affect (a) the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with counsel for the other terms hereof), the Indemnifying Party will be entitled to assume party who shall conduct the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying PartyParty Indemnitee, (b) the Party Indemnitee may participate in such defense at its expense, and one local counsel (c) the omission by the Party Indemnitee to represent give notice as provided herein shall not relieve the other party of its indemnification obligation except to the extent that such Indemnitee omission results in a failure of actual notice to the other party and the other party is materially damaged as a result of such failure to give notice. Except with the prior written consent of the Party Indemnitee, the other party shall not, in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party such Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and make any admission of liability or enter into any settlement that provides for injunctive or other nonmonetary relief affecting the Party Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account of Damages which that does not involve a Third Party Claim shall be asserted include as an unconditional term thereof the giving by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have each claimant or plaintiff to such Party Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. If the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its release from all liability with respect to such claimClaim or litigation. In the event that the Party Indemnitee shall in good faith determine that the conduct of the defense of any Claim subject to indemnification hereunder or any proposed settlement of any such Claim by the other party might be expected to affect adversely the ability of the Party Indemnitee to conduct the Business, or that the Party Indemnitee may have available to it one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the other party in respect of such Claim relating thereto, the Party Indemnitee shall have the right at all times to take over and assume control over the defense, settlement, negotiations or litigation relating to any such Claim at the sole cost of the other party (including without limitation reasonable attorneys' fees and disbursements and other amounts paid as the result of such Claim); provided, however, that if the Party Indemnitee does so take over and assume control, the Party Indemnitee shall not settle such Claim without the prior written consent of the other party, such consent not to be unreasonably withheld. In the event that the other party does not accept and continue the defense of any matter as provided above, the Indemnifying Party and the Indemnitee shall proceed have the full right to defend against any such Claim and shall be entitled to settle or agree to pay in good faith to negotiate a resolution of full such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11Claim.
Appears in 1 contract
Sources: Unit Purchase Agreement (Valassis Communications Inc)
Procedures for Indemnification. (a) If a claim or demand is made against an Indemnitee, or an Any Indemnitee shall otherwise learn of an assertion, by any Person who is not a party entitled to this Agreement (or an Affiliate thereof) (a "Third Party Claim") as to which one or more parties (collectively, the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement, such Indemnitee will IP Agreement shall notify the Indemnifying Party in writing, and in reasonable detail, of the applicable Third Party Claim reasonably promptly (and in any event within 10 business days) after becoming aware receipt by such Indemnitee of such written notice of the Third Party Claim; provided, however, that failure to give such notification will shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been 6 47 actually prejudiced as a result of such failure.
failure (bexcept that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice). Thereafter, the Indemnitee shall deliver to the Indemnifying Party, promptly (and in any event within 10 business days) after the Indemnitee's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitee relating to the Third Party Claim. If a Third Party Claim is made against an Indemnitee and Indemnitee, the Indemnifying Party unconditionally shall be entitled to participate in the defense thereof and, if it so chooses and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof)therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and Party; provided that such counsel is not reasonably satisfactory objected to by the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will shall not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claimsuch defense, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence)expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall have full control of such defense. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect (other than during the period prior to assume the defense thereof (including acknowledging its indemnification obligation time the Indemnitee shall have given notice of the Third Party Claim as aforesaidprovided above). If the Indemnifying Party assumes so elects to assume the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies all of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof or prosecution thereof. Such cooperation shall include the retention and (such cooperation to be at the expense, including reasonable legal fees and expenses, of upon the Indemnifying Party).
(c's request) If the provision to the Indemnifying Party unconditionally of records and irrevocably acknowledges in writing its obligation information which are reasonably relevant to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members making employees available on a mutually convenient basis to provide additional information of the Buyer Group any material provided hereunder. Whether or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, not the Indemnifying Party shall not consent to any settlement, compromise or discharge (including have assumed the consent to entry defense of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, in no event will the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld).
(d) Any claim on account ; provided, however, that the Indemnitee shall have the right to settle, compromise or discharge such Third Party Claim without the consent of Damages which does the Indemnifying Party if the Indemnitee releases in writing the Indemnifying Party from its indemnification obligation hereunder with respect to such Third Party Claim and such settlement, compromise or discharge would not involve otherwise adversely affect the Indemnifying Party. If the Indemnifying Party shall have assumed the defense of a Third Party Claim, the Indemnitee will agree to any settlement, compromise or discharge of a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to that the Indemnifying Party from whom may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such indemnification is soughtThird Party Claim and releases the Indemnitee completely in connection with such Third Party Claim. The failure by any Indemnitee so to notify Notwithstanding the foregoing, the Indemnifying Party shall not relieve be entitled to assume the Indemnifying defense of any Third Party Claim (and shall be liable for the fees and expenses of counsel incurred by the Indemnitee in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with its counsel, cannot be separated from any liability which it may have to related Third Party Claim for money damages. If such Indemnitee under this Agreementequitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. If be entitled to assume the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim shall be conclusively deemed a liability defense of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability portion relating to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11money damages.
Appears in 1 contract
Sources: Agreement and Plan of Distribution (Itt Destinations Inc /Nv)
Procedures for Indemnification. (a) If any party shall seek indemnification with respect to any Loss or potential Loss arising from a claim asserted by a third party (including a notice of Tax audit or demand request to waive or extend a statute of limitations applicable to any Tax) for which such party seeking indemnification (the “Indemnified Party”) is made against an Indemniteeentitled to indemnification under this ARTICLE 9, or an Indemnitee then the Indemnified Party shall otherwise learn of an assertion, by any Person who is not a promptly notify the other party to this Agreement (or an Affiliate thereof) (a "Third Party Claim") as to which one or more parties (collectively, the "“Indemnifying Party"”) may be obligated to provide indemnification pursuant to this Agreement, such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, that failure to give such notification will not affect no delay on the indemnification provided hereunder part of the Indemnified Party in notifying the Indemnifying Party (except to the extent notice is not received prior to the expiration of the applicable expiration provision contained in Section 9.1) shall relieve Indemnifying Party shall have been actually from any obligation hereunder unless (and then solely to the extent that) Indemnifying Party is prejudiced as a result of such failurethereby.
(b) If a Third An Indemnifying Party Claim is made will have the right to defend the Indemnified Party against an Indemnitee and the claim with counsel of its choice, reasonably satisfactory to the Indemnified Party, so long as (i) the Indemnifying Party unconditionally and irrevocably acknowledges notifies the Indemnified Party in writing its obligation to indemnify writing, within ten (10) days after the Indemnitee therefor (subject to verification Indemnified Party has given notice of the claim, that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnifying Party will be entitled satisfy its indemnification obligations to assume the extent required under this ARTICLE 9, (ii) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the claim and to fulfill its indemnification obligations hereunder, (iii) the claim involves only money damages and does not seek injunctive or other equitable relief; (iv) settlement of, or an adverse judgment with respect to, the claim is not, in the reasonable and good faith judgment of the Indemnified Party likely to establish a precedential custom or practice or result in an outcome that is materially adverse to the continuing business interests of the Indemnified Party; and (v) the Indemnifying Party conducts the defense thereof of the claim actively, diligently and completely. So long as the Indemnifying Party is conducting the defense of the claim in accordance with this Section 9.5(b), (A) the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the expense defense of the claim, (B) the Indemnified Party will not consent to the entry of any judgment or enter into any settlement with respect to the claim without the prior written consent of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that, if in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such counsel shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or if it does not expressly elect to assume the defense thereof (including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, all the Indemnitees shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld, and (C) the Indemnifying Party will not consent to the entry of any judgment or enter into any settlement with respect to the claim without the prior written consent of the Indemnified Party which consent shall not be unreasonably withheld.
(c) In the event any of the conditions of Section 9.5(b) above is or becomes unsatisfied, however, (i) the Indemnified Party may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), (ii) the Indemnifying Party will reimburse the Indemnified Party promptly and periodically for the costs of defending against the claim (including attorneys’ fees and expenses reasonably incurred), and (iii) the Indemnifying Party will remain responsible to indemnify the Indemnified Party to the extent required under this ARTICLE 9.
(d) Any claim on account The parties to this Agreement shall execute such powers of Damages which does not involve a Third Party Claim shall attorney as may be asserted by reasonably prompt written notice given by the Indemnitee necessary or appropriate to the Indemnifying Party from whom such indemnification is sought. The failure permit participation of counsel selected by any Indemnitee so party hereto and, as may be reasonably related to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. If the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, shall provide access to the claim shall be conclusively deemed a liability counsel, accountants, and other representatives of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount each party during normal business hours to all properties, personnel, books, Tax records, contracts, commitments and all other business records of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect other party and will furnish to such claim, other party copies of all documents as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, may reasonably be requested (certified if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11.requested)
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Aldila Inc)