Procedures Relating to Indemnification. (a) Any party seeking indemnification under Section 6.01 (an “Indemnified Party”) shall promptly give the Party from whom indemnification is being sought (an “Indemnifying Party”) notice of any matter which such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent the Indemnifying Party is materially prejudiced by such failure. With respect to any recovery or indemnification sought by an Indemnified Party from the Indemnifying Party that does not involve a Third Party Claim, if the Indemnifying Party does not notify the Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim. (b) If an Indemnified Party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such notice, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then the Indemnifying Party shall be entitled to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified Party.
Appears in 7 contracts
Sources: Securities Purchase Agreement (Mercurity Fintech Holding Inc.), Securities Purchase Agreement (Mercurity Fintech Holding Inc.), Securities Purchase Agreement (Mercurity Fintech Holding Inc.)
Procedures Relating to Indemnification. (a) Any party seeking indemnification under Section 6.01 (If a claim or demand is made against an “Indemnified Party”, or an Indemnified Party shall otherwise learn of an assertion, by any Person who is not a party to this Agreement (or an Affiliate thereof) shall promptly give the as to which an Indemnifying Party from whom may be obligated to provide indemnification is being sought pursuant to this Agreement (an “Indemnifying Party”) notice of any matter which a "Third Party Claim"), such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises; provided that the failure to provide such notice shall not release will notify the Indemnifying Party from any in writing, and in reasonable detail, of its obligations under this Article VI 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 is materially shall have been actually prejudiced by as a result of such failure. With respect Thereafter, the Indemnified Party will deliver to any recovery the Indemnifying Party, promptly after the Indemnified Party's receipt thereof, copies of all material notices and documents (including court papers) received or indemnification sought transmitted by the Indemnified Party's relating to the Third Party Claim.
(b) If a Third Party Claim is made against an Indemnified Party from Party, the Indemnifying Party will be entitled to participate in or to assume the defense thereof (in either case, at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified 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 Indemnified Party for any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof; provided, however, that if in the Indemnified Party's reasonable judgment a conflict of interest exists in respect of such claim or if the Indemnifying Party shall have assumed responsibility for such claim with any reservations or exceptions, such Indemnified Party will have the right to employ separate counsel reasonably satisfactory to the Indemnifying Party to represent such Indemnified Party and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel for all Indemnified Parties similarly situated) shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party will have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party will control such defense. The Indemnifying Party will be liable for the reasonable fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnified Party copies of all material correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnified Party fully informed of all material developments relating to or in connection with such Third Party Claim (including providing to the Indemnified Party on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, the Parties will cooperate in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party), which cooperation shall include the retention in accordance with this Agreement and (upon the Indemnifying Party's request) the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(c) 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 Indemnified Party's prior written consent (which consent will not be unreasonably withheld); provided, however, that if the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party 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 Indemnified Party and its Affiliates completely from all Liability in connection with such Third Party Claim; provided, however, that the Indemnified Party may refuse to agree to any such settlement, compromise or discharge (x) that provides for injunctive or other non-monetary relief affecting the Indemnified Party or any of its Affiliates or (y) that, in the reasonable opinion of the Indemnified Party, would otherwise materially adversely affect the Indemnified Party or any of its Affiliates. Whether or not the Indemnifying Party shall have assumed the defense of a Third Party Claim, the Indemnified Party 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 will not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim, if Claim will be asserted by reasonably prompt written notice given by the Indemnified Party to the Indemnifying Party does not notify the from whom such indemnification is sought. The failure by any Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that to so notify the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
(b) If an Indemnified Party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such notice, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided that the failure to provide such notice shall will not release relieve the Indemnifying Party from any of its obligations liability which it may have to such Indemnified Party under this Article VI Agreement, except to the extent that the Indemnifying Party is materially shall have been actually prejudiced by such failure. If .
(e) In the event of payment in full by an Indemnifying Party acknowledges in writing its obligation to indemnify the any Indemnified Party hereunder against in connection with any Losses that may result from such Third Party Claim, then the such Indemnifying Party will be subrogated to and shall be entitled stand in the place of such Indemnified Party as to assume and control the defense any events or circumstances in respect of which such Indemnified Party may have any right or claim relating to such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any claimant or plaintiff asserting such Third Party Claim as provided above, the or against any other Person. Such Indemnified Party shall will cooperate with the such Indemnifying Party in a reasonable manner, and at the cost and expense of such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession prosecuting any subrogated right or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified Partyclaim.
Appears in 6 contracts
Sources: Mexican Stock and Asset Purchase Agreement (Alpha Industries Inc), Mexican Asset Purchase Agreement (Conexant Systems Inc), Mexican Asset Purchase Agreement (Skyworks Solutions Inc)
Procedures Relating to Indemnification. (a) Any 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 seeking indemnification under Section 6.01 (an “Indemnified Party”) shall promptly give the Party from whom indemnification is being sought (an “Indemnifying Party”) notice of any matter which such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim (or an Affiliate thereof) as to the extent known by the Indemnified Party, and containing a reference which an Indemnifying Party may be obligated to the provisions of provide indemnification pursuant to this Agreement in respect of which (a "Third Party Claim"), such right of indemnification is claimed or arises; provided that the failure to provide such notice shall not release Indemnitee will notify the Indemnifying Party from any in writing, and in reasonable detail, of its obligations under this Article VI 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 is materially shall have been actually prejudiced by as a result of such failure. With respect Thereafter, the Indemnitee will deliver to any recovery the Indemnifying Party, promptly after the Indemnitee's receipt thereof, copies of all material notices and documents (including court papers) received or indemnification sought transmitted by the Indemnitee relating to the Third Party Claim.
(b) If a Third Party Claim is made against an Indemnified Party from Indemnitee, the Indemnifying Party will be entitled to participate in or to assume the defense thereof (in either case, 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 the Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or if the Indemnifying Party shall have assumed responsibility for such claim with any reservations or exceptions, such Indemnitee will have the right to employ separate counsel reasonably satisfactory to the Indemnifying Party to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel for all Indemnitees similarly situated) shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee will have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party will control such defense. The Indemnifying Party will 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. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all material 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). If the Indemnifying Party chooses to defend a Third Party Claim, the parties hereto will cooperate in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party), which cooperation shall include the retention in accordance with this Agreement and (upon the Indemnifying Party's request) the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(c) 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 (which consent will not be unreasonably withheld); provided, that if the Indemnifying Party assumes the defense of any Third Party 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 Indemnifiable Losses in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee and its Affiliates completely from all Liability in connection with such Third Party Claim; provided, however, that the Indemnitee may refuse to agree to any such settlement, compromise or discharge (x) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (y) that, in the reasonable opinion of the Indemnitee, would otherwise materially adversely affect the Indemnitee or any of its Affiliates. Whether or not the Indemnifying Party shall have assumed the defense of a Third Party Claim, the Indemnitee 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 will not be unreasonably withheld).
(d) Any claim on account of Indemnifiable Losses which does not involve a Third Party Claim, if Claim will be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party does not from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
(b) If an Indemnified Party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such notice, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided that the failure to provide such notice shall will not release relieve the Indemnifying Party from any of its obligations liability which it may have to such Indemnitee under this Article VI Agreement, except to the extent that the Indemnifying Party is materially shall have been actually prejudiced by such failure. If .
(e) In the event of payment in full by an Indemnifying Party acknowledges to any Indemnitee in writing its obligation to indemnify the Indemnified Party hereunder against connection with any Losses that may result from such Third Party Claim, then the such Indemnifying Party will be subrogated to and shall be entitled stand in the place of such Indemnitee as to assume and control the defense any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any claimant or plaintiff asserting such Third Party Claim as provided above, the Indemnified Party shall or against any other Person. Such Indemnitee will cooperate with the such Indemnifying Party in a reasonable manner, and at the cost and expense of such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession prosecuting any subrogated right or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified Partyclaim.
Appears in 5 contracts
Sources: Contribution and Distribution Agreement (Conexant Systems Inc), Contribution and Distribution Agreement (Alpha Industries Inc), Distribution Agreement (New Rockwell Collins Inc)
Procedures Relating to Indemnification. (a) Any In order for an Indemnitee to be entitled to any indemnification provided for under this Separation Agreement in respect of, arising out of or involving a claim made by any person who is not an Indemnitee against such Indemnitee (a “Third Party Claim”), such Indemnitee must notify the party seeking who may become obligated to provide indemnification under Section 6.01 hereunder (an “Indemnified Party”) shall promptly give the Party from whom indemnification is being sought (an “Indemnifying Party”) in writing, and in reasonable detail, of the Third Party Claim reasonably promptly, and in any event within 10 Business Days after receipt by such Indemnitee of written notice of any matter which such Indemnified the Third Party has determined has given or would reasonably be expected Claim; provided, however, that failure to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises; provided that the failure to provide such notice notification shall not release affect the Indemnifying Party from any of its obligations under this Article VI indemnification provided hereunder except to the extent the Indemnifying Party is shall have been actually and materially prejudiced by in its ability to successfully defend the matter giving rise to such claim as a result of such failure. With respect After any required notification (if applicable), the Indemnitee shall deliver to any recovery or indemnification sought 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.
(b) If a Third Party Claim is made against an Indemnified Party from Indemnitee, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so chooses, 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 expenses subsequently incurred by the Indemnitee in connection with the defense thereof. If the Indemnifying Party assumes such defense, the Indemnitee shall have the right to participate, at its own expense, in the defense thereof solely to assert any additional defenses and to employ counsel, at its own expense, except as set forth below, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for the reasonable fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has not assumed the defense thereof (other than during any period in which the Indemnitee shall have failed to give notice of the Third Party Claim as provided above). Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall not be liable for the fees and expenses of counsel incurred by the Indemnitee in defending such Third Party Claim, except for the reasonable fees and expenses of counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee) 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 related claim for money damages. If such equitable or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages.
(c) The indemnification required by Section 5.01 or Section 5.02, as the case may be, shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or the Indemnifiable Loss is incurred. If the Indemnifying Party chooses to defend or prosecute a Third Party Claim (i) all the parties hereto reasonably necessary or appropriate for such defense or prosecution shall cooperate in the defense or prosecution thereof, which cooperation shall include the retention in accordance with this Separation Agreement and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim and in such party’s control, (ii) the Indemnifying Party shall keep the Indemnitee reasonably informed of all significant developments in connection with the defense or prosecution of such Third Party Claim and (iii) the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend (after representing to the Indemnitee that such settlement is reasonably likely to be acceptable to the parties to the Third Party Claim) and which by its terms obligates the Indemnifying Party to pay the full amount of liability in connection with such Third Party Claim; provided, however, that, without the Indemnitee’s consent (which consent shall not be unreasonably withheld, conditioned or delayed), the Indemnifying Party shall not consent to entry of any judgment or enter into any settlement (x) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or its properties or (y) that does not include as an unconditional term thereof the giving by each claimant or plaintiff to such Indemnitee of a release from all liability with respect to such claim; provided, further, however, that if the Indemnitee does not consent to any settlement recommended by the Indemnifying Party pursuant to subclause (iii) above (after representing to the Indemnitee that such settlement is reasonably likely to be acceptable to the parties to the Third Party Claim) then the Indemnifying Party (1) shall not in any event be obligated to indemnify the Indemnitee, or otherwise be responsible, for any amount in excess of the amount of the settlement so recommended by the Indemnifying Party and (2) shall be entitled to reimbursement of the fees and expenses of counsel incurred by the Indemnifying Party after the date on which the recommendation was made to the Indemnitee in the event the final and unappealable judgment in such Third Party Claim exceeds the amount of the settlement so recommended. If the Indemnifying Party shall have assumed the defense of a Third Party Claim, the Indemnitee shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent, not to be unreasonably withheld. If the Indemnifying Party does not or is not entitled to assume the defense of a Third Party Claim, the Indemnitee may defend the same in such manner as it may deem appropriate; provided, however, that the Indemnitee shall not admit any liability with respect to, or settle, compromise or discharge such Third Party Claim without the Indemnifying Party’s prior written consent, not to be unreasonably withheld.
(d) In order for an Indemnitee to be entitled to any indemnification provided for under this Separation Agreement in respect of a claim that does not involve a Third Party Claim, if the Indemnitee shall deliver notice of such claim (in reasonably sufficient detail to enable the Indemnifying Party does not notify the Indemnified Party within thirty (30to evaluate such claim) days from its receipt of the notice from the Indemnified Party that with reasonable promptness to the Indemnifying Party disputes Party. The failure by any Indemnitee to give such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
(b) If an Indemnified Party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such notice, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided that the failure to provide such notice notification shall not release affect the Indemnifying Party from any of its obligations under this Article VI indemnification provided hereunder except to the extent that the Indemnifying Party is shall have been actually and materially prejudiced by in its ability to successfully defend the matter giving rise to such claim as a result of such failure. If the Indemnifying Party acknowledges in writing does not notify the Indemnitee within 20 Business Days following its obligation receipt of such notice that the Indemnifying Party disputes its liability with respect to indemnify such claim under Section 5.01 or Section 5.02, as the Indemnified case may be, the claim shall be conclusively deemed a liability of the Indemnifying Party hereunder against any Losses that under Section 5.01 or Section 5.02, as the case may result from such Third Party Claimbe, then and the Indemnifying Party shall be entitled to assume and control pay the defense amount of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so liability to the Indemnified Party within fifteen (15) days Indemnitee on demand or, in the case of any notice in which the amount of the receipt claim (or any portion thereof) is estimated, on such later date when the amount of such notice from the Indemnified Party; provided that that if there exists claim (or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expensesuch portion thereof) becomes finally determined. In the event that If the Indemnifying Party exercises the right has timely disputed its liability with respect to undertake any such defense against any such Third Party Claim claim, as provided above, the Indemnified Party shall cooperate with the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such defense and make available to the Indemnifying Partydispute and, at the Indemnifying Party’s expenseif not resolved through negotiations, all witnesses, pertinent records, materials and information such dispute shall be resolved in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate accordance with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified PartySection 7.11.
Appears in 5 contracts
Sources: Separation Agreement (Assisted Living Concepts Inc), Separation Agreement (Assisted Living Concepts Inc), Separation Agreement (Assisted Living Concepts Inc)
Procedures Relating to Indemnification. (a) Any party seeking indemnification under Section 6.01 (an “Indemnified Party”) shall promptly give the Party from whom indemnification is being sought (an “Indemnifying Party”) notice of any matter which such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent the Indemnifying Party is materially prejudiced by such failure. With respect to any recovery or indemnification sought by an Indemnified Party from the Indemnifying Party that does not involve a Third Party Claim, if the Indemnifying Party does not notify the Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim. If the Indemnifying Party has disputed a claim for indemnification (including any Third Party Claim), the Indemnifying Party and the Indemnified Party shall proceed in good faith to negotiate a resolution to such dispute. If the Indemnifying Party and the Indemnified Party cannot resolve such dispute in thirty (30) days after delivery of the dispute notice by the Indemnifying Party, such dispute shall be resolved by arbitration pursuant to Section 7.02.
(b) If an Indemnified Party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such notice, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then the Indemnifying Party shall be entitled to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified Party.
Appears in 5 contracts
Sources: Share Subscription Agreement (JD.com, Inc.), Securities Purchase Agreement (Dragon Victory International LTD), Share Subscription Agreement (Dada Nexus LTD)
Procedures Relating to Indemnification. (a) Any If an Indemnified Party shall desire to assert any claim for indemnification provided for under this Article VII in respect of, arising out of or involving a claim or demand made by any Person (other than a party seeking hereto or Affiliate thereof) against the Indemnified Party (a “Third-Party Claim”), such Indemnified Party shall notify the party liable for such indemnification under Section 6.01 (an “Indemnified Party”) shall promptly give the Party from whom indemnification is being sought (an “Indemnifying Party”) notice in writing, and in reasonable detail (taking into account the information then available to such Indemnified Party), of any matter which the Third-Party Claim promptly after receipt by such Indemnified Party has determined has given or would reasonably be expected of written notice of the Third-Party Claim; provided, however, that failure to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises; provided that the failure to provide such notice notification shall not release affect the Indemnifying Party from any of its obligations under this Article VI indemnification provided hereunder except to the extent the Indemnifying Party is materially shall have been actually prejudiced by as a result of such failure. With respect to any recovery or indemnification sought by an The Indemnified Party from shall deliver to the Indemnifying Party, promptly 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; provided, however, that the failure to deliver such copies shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party that does not involve shall have been actually prejudiced as a Third result of such failure.
(b) If a Third-Party Claim, if the Indemnifying Party does not notify the Claim is made against an Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claimParty, the Indemnifying Party shall be deemed entitled to participate in the defense thereof and, if it so chooses to assume the defense thereof with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. Should the Indemnifying Party so elect to assume the defense of a Third-Party Claim, the Indemnifying Party shall not be liable to the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof, unless the Third-Party Claim involves potential conflicts of interest or substantially different defenses for the Indemnified Party and the Indemnifying Party based on the advice of counsel. If the Indemnifying Party assumes such defense, the Indemnified Party shall have accepted the right to participate in defense thereof and agreed to employ counsel, at its own expense (except as provided in the immediately preceding sentence), separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. If the Indemnifying Party chooses to defend any Third-Party Claim, all the parties hereto shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records and information that are reasonably relevant to such Third-Party Claim, and use reasonable efforts to make employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the Indemnifying Party shall have assumed the defense of a Third-Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, such claimThird- Party Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld). The Indemnifying Party may pay, settle or compromise a Third-Party Claim without the written consent of the Indemnified Party, so long as such settlement includes
(A) an unconditional release of the Indemnified Party from all liability in respect of such Third- Party Claim, (B) does not subject the Indemnified Party to any injunctive relief or other equitable remedy and (C) does not include a statement or admission of fault, culpability or failure to act by or on behalf of any Indemnified Party.
(bc) If an Indemnified Party shall receive notice of desire to assert any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss indemnification provided for under this Article VIVII other than a claim in respect of, within thirty (30) days arising out of the receipt of or involving a Third-Party Claim, such notice, the Indemnified Party shall give notify the Indemnifying Party notice in writing, and in reasonable detail (taking into account the information then available to such Indemnified Party), of such Third Party Claimclaim promptly after becoming aware of the existence of such claim; provided that the failure to provide give such notice notification shall not release affect the Indemnifying Party from any of its obligations under this Article VI indemnification provided for hereunder except to the extent that the Indemnifying Party is materially shall have been actually prejudiced by as a result of such failure. If the Indemnifying Party acknowledges in writing does not respond to such notice within 45 days after its obligation receipt, it shall have no further right to indemnify contest the Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then the Indemnifying Party shall be entitled to assume and control the defense validity of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified Partyclaim.
Appears in 4 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement, Stock Purchase Agreement
Procedures Relating to Indemnification. (a) Any In order for a party seeking indemnification under Section 6.01 (an “the "Indemnified Party”") shall promptly give the Party from whom to be entitled to any indemnification is being sought (an “Indemnifying Party”) notice of any matter which such Indemnified Party has determined has given provided for under Paragraph 6.1 or would reasonably be expected to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions 6.2 of this Agreement in respect of, arising out of, or involving a Claim (as hereinafter defined) or demand made by any person, firm, governmental authority or corporation against the Indemnified Party (a "Claim" or a "Third Party Claim"), such Indemnified Party shall notify the indemnifying party as soon as practicable following receipt of which such right written notice of indemnification is claimed or arisessaid Third Party Claim; provided PROVIDED, HOWEVER, that the failure to provide give or delay in giving such notice notification shall not release affect the Indemnifying Party from any of its obligations under this Article VI indemnification provided hereunder except to the extent the Indemnifying Party is materially indemnifying party shall have been actually prejudiced by as a result of such failurefailure or delay. With respect to any recovery or indemnification sought by an Thereafter, the Indemnified Party from shall deliver to the Indemnifying indemnifying party, as soon as practicable following the Indemnified Party's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party that does not involve a relating to the Third Party Claim. In providing notice to the indemnifying party, if the Indemnifying Party does not notify the Indemnified Party within thirty (30) days from acknowledges its receipt of the responsibility to provide said notice from the Indemnified Party as promptly as possible in order that the Indemnifying Party disputes such claim, the Indemnifying Party indemnifying party shall be deemed able to have accepted engage counsel and agreed with such claimto submit appropriate answers to any Third Party Claim within the time period required by law.
(b) If a Third Party Claim is made against an Indemnified Party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such noticeParty, the indemnifying party shall assume the defense thereof with counsel selected by the indemnifying party and reasonably acceptable to the Indemnified Party. The Indemnified Party shall give may participate in the Indemnifying Party notice defense of such Third Party Claim; provided that PROVIDED, HOWEVER, the failure indemnifying party will not be liable to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against for legal expenses incurred by the Indemnified Party in connection with such defense subsequent to the assumption thereof by the indemnifying party. The indemnifying party shall be liable for the fees and expenses of counsel employed by the Indemnified Party for any Losses that may result from period during which the indemnifying party has not assumed the defense thereof. All of the parties hereto shall cooperate in the defense or prosecution of any Third Party Claim. Such cooperation shall include the retention and (upon the indemnifying party's written request) the provision to the indemnifying party of records and information which are reasonably relevant to such Third Party Claim, then the Indemnifying and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnified Party shall be entitled to assume and control the defense of not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the indemnifying party's prior written consent of the Indemnified Partyconsent.
Appears in 3 contracts
Sources: Asset Purchase Agreement (It Staffing LTD), Asset Purchase Agreement (Puro Water Group Inc), Asset Purchase Agreement (It Staffing LTD)
Procedures Relating to Indemnification. (a) Any In order for a party seeking to be entitled to seek any indemnification under Section 6.01 (an “Indemnified Party”) shall promptly give the Party from whom indemnification is being sought (an “Indemnifying Party”) notice of any matter which such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification provided for under this Agreement stating in reasonable detail (such party, the factual basis of the claim to the extent known by the Indemnified "Claiming Party, and containing a reference to the provisions of this Agreement ") in respect of which a claim or demand made against the Claiming Party by any Person who is not a party to this Agreement or an Affiliate thereof (a "Third-Party Claim"), such right Claiming Party must notify the party to this Agreement that is or may be required to provide indemnification hereunder (the "Defending Party") in writing, and in reasonable detail, of indemnification is claimed or arisesthe Third-Party Claim as promptly as reasonably practicable but in any event within fifteen (15) calendar days after receipt by such Claiming Party of notice of the Third-Party Claim; provided provided, however, that the failure to provide give such notice notification on a timely basis shall not release affect the Indemnifying Party from any of its obligations under this Article VI indemnification provided hereunder except to the extent the Indemnifying Defending Party is materially shall have been actually prejudiced by as a result of such failure. With respect Thereafter, the Claiming Party shall keep the Defending Party reasonably apprised as to any recovery or indemnification sought the status of such Third-Party Claim and shall provide to the Defending Party, within fifteen (15) calendar days after the Claiming Party's receipt thereof, copies of all material notices and documents (including court papers) received by an Indemnified the Claiming Party from relating to the Indemnifying Party that does not involve a Third Third-Party Claim; provided, if however, that failure to delivery such copies on a timely basis shall not affect the Indemnifying Party does not notify indemnification provided hereunder except to the Indemnified Party within thirty (30) days from its receipt of extent the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Defending Party shall be deemed to have accepted and agreed with been actually prejudiced as a result of such claimfailure.
(b) If an Indemnified a Third-Party shall receive notice of any claim or demand asserted by Claim is made against a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such noticeClaiming Party, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then the Indemnifying Defending Party shall be entitled to participate in the defense thereof and, if it so chooses, to assume the defense thereof (subject to a reservation of rights) with counsel selected by the Defending Party and control reasonably satisfactory to the Claiming Party (the Parties acknowledging that K&L Gates LLP is acceptable); provided, that no Defending Party shall have the right to assume the defense of such Third a Third-Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to unless (i) the Defending Party notifies the Indemnified Party in writing within fifteen (15) calendar days after the Claiming Party has given notice of the receipt of such notice from Third-Party Claim that the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment Defending Party will assume defense of the Indemnified Third-Party in its sole Claim and absolute discretion for will indemnify the same counsel to represent both the Indemnified Party and the Indemnifying Claiming Party, then in accordance with the Indemnified provisions of this Article 9, from and against the Losses the Claiming Party shall be entitled may suffer with respect to retain its own counsel in each jurisdiction for which the Indemnified Third-Party determines counsel is requiredClaim, at (ii) the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Third-Party Claim does not seek an injunction or other equitable relief as provided aboveits principal remedy, (iii) the Indemnified Third-Party shall cooperate with Claim does not involve a criminal matter and (iv) the Indemnifying Defending Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting conducts the defense against any such Third of the Third-Party Claim actively and diligently. Should a Defending Party so elect to assume the defense of a Third-Party Claim, the Indemnifying Defending Party shall cooperate not be liable to the Claiming Party for legal expenses subsequently incurred by the Claiming Party in connection with the Indemnified defense thereof. The Defending Party shall be liable for the fees and expenses of counsel employed by the Claiming Party for any period during which the Defending Party has not assumed the defense thereof. If the Defending Party assumes such defense in accordance with this Section 9.06(b), (A) the Claiming Party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Defending Party, it being understood, however, that the Defending Party shall control such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all (B) no compromise or settlement of such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Third-Party Claim may be settled effected by the Indemnifying Defending Party without the Claiming Party's consent (not to be unreasonably withheld, conditioned or delayed). The Defending Party and the Claiming Party shall provide, and shall cause their controlled Affiliates to provide, as applicable, the other and its counsel with reasonable access, upon reasonable prior written notice and during normal business hours, in a manner so as to not unreasonably interfere in any material respect with their normal business operations, to their respective records and personnel and shall otherwise reasonably cooperate in the defense or settlement thereof.
(c) If the Defending Party does not assume the defense of a Third-Party Claim in accordance with Section 9.06(b), or if the Defending Party does not actively and diligently conduct the defense of the Third-Party Claim, the Claiming Party may conduct the defense of the Third-Party Claim at the expense of the Defending Party (not to be unreasonably withheld, conditioned or delayed). The Claiming Party shall not effect any settlement or compromise any such Third-Party Claim without the prior written consent of the Indemnified PartyDefending Party (which consent shall not be unreasonably withheld, conditioned or delayed).
Appears in 3 contracts
Sources: Stock Purchase Agreement (Steel Partners Holdings L.P.), Stock Purchase Agreement (Rogers Corp), Stock Purchase Agreement (Handy & Harman Ltd.)
Procedures Relating to Indemnification. In order for a Person (a) Any party seeking indemnification under Section 6.01 (an the “Indemnified Party”) shall promptly give the Party from whom to be entitled to any indemnification is being sought (an “Indemnifying Party”) notice of any matter which such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification provided for under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this IP License Agreement in respect of, arising out of which such right of indemnification is claimed or arises; provided that the failure to provide such notice shall not release the Indemnifying Party from involving a claim or demand made by any of its obligations under this Article VI except to the extent the Indemnifying Party is materially prejudiced by such failure. With respect to any recovery or indemnification sought by an Indemnified Party from the Indemnifying Party that does not involve a Third Party Claim, if the Indemnifying Party does not notify Person against the Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
(b) If an Indemnified Party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI), within thirty (30) days such Indemnified Party must notify the indemnifying party in writing, and in reasonable detail, of the Third Party Claim as promptly as reasonably possible after receipt by such Indemnified Party of notice of the Third Party Claim; provided, however, that failure to give such notification 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 noticefailure. Thereafter, the Indemnified Party shall give deliver to the Indemnifying indemnifying party, within five (5) Business Days after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court filings and related papers) received by the Indemnified Party notice of such relating to the Third Party Claim; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent that the Indemnifying Party is materially prejudiced by such failure. If a Third Party Claim is made against an Indemnified Party, the Indemnifying Party indemnifying party shall be entitled to participate in the defense thereof and, if it so chooses and acknowledges in writing its obligation to indemnify the Indemnified Party hereunder therefore, to assume the defense thereof with counsel selected by the indemnifying party and reasonably satisfactory to the Indemnified Party and to settle such suit, action, claim or proceeding in its discretion with a full release of the Indemnified Party and no admission of criminal liability. Notwithstanding any acknowledgment made pursuant to the immediately preceding sentence, the indemnifying party shall continue to be entitled to assert any limitation on its indemnification responsibility contained in Section 11. Should the indemnifying party so elect to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof unless the indemnifying party has substantially and materially failed to defend, contest or otherwise protest in a timely manner against Third Party Claims. If the indemnifying party assumes such defense, the Indemnified Party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the indemnifying party, it being understood, however, that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of counsel employed by the Indemnified Party for any Losses period during which the indemnifying party has not assumed the defense thereof. If the indemnifying party chooses to defend any Third Party Claim, all the parties hereto shall cooperate in the defense or prosecution of such Third Party Claim. Such cooperation shall include the retention and (upon the indemnifying party’s request) the provision to the indemnifying party of records and information that may result from are reasonably relevant to such Third Party Claim, then and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the Indemnifying Party indemnifying party shall be entitled to assume and control have assumed the defense of such a Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided aboveClaim, the Indemnified Party shall cooperate not admit any liability with the Indemnifying Party in such defense and make available to the Indemnifying Partyrespect to, at the Indemnifying Party’s expenseor settle, all witnessescompromise or discharge, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the indemnifying party’s prior written consent, which consent of the Indemnified Partyshall not be unreasonably withheld, unreasonably delayed or unreasonably conditioned.
Appears in 3 contracts
Sources: Intellectual Property License Agreement (Opnext Inc), Intellectual Property License Agreement (Opnext Inc), Intellectual Property License Agreement (Opnext Inc)
Procedures Relating to Indemnification. (a) Any A party seeking indemnification under Section 6.01 pursuant to this Article 8 (an “"Indemnified Party”") shall promptly give prompt written notice to the Party party from whom such indemnification is being sought (an “the "Indemnifying Party”") notice of the assertion of any matter claim, the incurrence of any Damages, or the commencement of any action, suit or proceeding of which such Indemnified Party it has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, knowledge and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises; provided that the failure to provide such notice shall not release indemnity may be sought hereunder (a "Third Party Claim"), and will give the Indemnifying Party from such information with respect thereto as the Indemnifying Party may reasonably request, but failure to give such required notice shall relieve the Indemnifying Party of any of its obligations under this Article VI except liability hereunder only to the extent that the Indemnifying Party is materially prejudiced by such failurehas suffered actual prejudice thereby. With respect to any recovery or indemnification sought by an Thereafter, the Indemnified Party from shall deliver to the Indemnifying Party, within ten (10) business days after the Indemnified Party's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party that does not involve a relating to such Third Party Claim, if the . The Indemnifying Party does not notify shall have the right, exercisable by written notice to the Indemnified Party within thirty (30) days from its after receipt of the notice from the Indemnified Party of the commencement of or assertion of any claim or action, suit or proceeding by a third party in respect of which indemnity may be sought hereunder, to assume the defense of such Third Party Claim which involves (and continues to involve) solely monetary damages using counsel reasonably satisfactory to the Indemnified Party; provided, that (A) the Indemnifying Party disputes expressly agrees in such claimnotice that, as between the Indemnifying Party and the Indemnified Party, solely the Indemnifying Party shall be obligated to satisfy and discharge the Third Party Claim, (B) such Third Party Claim does not include a request or demand for injunctive or other equitable relief and (C) the Indemnifying Party makes reasonably adequate provision to assure the Indemnified Party of the ability of the Indemnifying Party to satisfy the full amount of any adverse monetary judgment that is reasonably likely to result. The Indemnifying Party shall be deemed to have accepted and agreed satisfied the condition set forth in clause (C) of the preceding sentence if it is a regulated utility. Should the Indemnifying Party elect to assume the defense of a Third Party Claim pursuant to this Section 8.6, the Indemnifying Party will not be liable to the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in connection with such claimthe defense thereof.
(b) If an Indemnified Party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such notice, Neither the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then nor the Indemnifying Party shall be entitled to assume and control the defense of such admit any liability with respect to, or settle, compromise or discharge any Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the other, which consent shall not be unreasonably withheld or delayed.
(c) The Indemnifying Party or the Indemnified Party, as the case may be, shall have the right to participate in (but not control), at its own expense, the defense of any Third Party Claim which the other party is defending as provided in this Agreement.
(d) 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 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.
(e) In the event of any indemnification claim under this Article 8 involving a Third Party Claim, the Indemnified Party shall cooperate fully (and shall cause its Affiliates to cooperate fully) with the Indemnifying Party in the defense of any such claim under this Article 8. Without limiting the generality of the foregoing, the Indemnified Party shall furnish the Indemnifying Party with such documentary or other evidence as is then in its or any of its Affiliates' possession as may reasonably be requested by the Indemnifying Party for the purpose of defending against any such claim. Whether or not the Indemnifying Party chooses to defend or prosecute any claim involving a 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 reasonably requested in connection therewith. Such cooperation shall include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder, and the Indemnifying Party shall reimburse the Indemnified Party for all its reasonable out-of-pocket expenses in connection therewith.
(f) The parties acknowledge that Buyer (and the other Persons for which they can claim indemnity hereunder) shall be entitled to indemnification for Damages in respect of intentional and willful breaches of covenants or agreements in this Agreement irrespective of the Threshold Amount or the Ceiling (it being understood that the failure to cure a breach shall not, by itself, be an intentional and willful breach). Notwithstanding anything to the contrary in this Article 8, Buyer (or the other Persons for which they can claim indemnification) shall be entitled to indemnification for Damages in respect of a breach of Section 3.2 and 3.6 irrespective of the Threshold Amount or the Ceiling.
(g) Each of the parties hereto agrees that its sole and exclusive remedy after the Closing with respect to any and all claims relating to this Agreement, the Company, the events giving rise to this Agreement and the transactions provided for herein or contemplated hereby, shall be pursuant to the indemnification provisions contained in this Article 8. Without limiting the generality or effect of the foregoing, as a material inducement to the other parties hereto entering into this Agreement, Buyer hereby waives, from and after the Closing, any claim or cause of action, known and unknown, foreseen and unforeseen, which it or any of its Affiliates (including after the Closing, the Company) may have against the other parties hereto, including without limitation under the common law or federal or state securities laws, trade regulation laws or other laws (including CERCLA and any other Environmental Laws), by reason of this Agreement, the events giving rise to this Agreement and the transactions provided for herein or contemplated hereby or thereby, except for claims or causes of action brought under and subject to the terms and conditions of the indemnification provisions contained in this Article 8.
(h) Indemnification for any claim under this Article 8 shall not be available to any Indemnified Party unless such Indemnified Party, if requested to do so by the Indemnifying Party, first seeks recovery from any Collateral Source for such claim before making any claim for indemnification by the Indemnifying Party; provided that the Indemnifying Party shall pay the costs and expenses incurred by the Indemnified Party in seeking such recovery from such Collateral Source. Any Indemnifying Party may, in its sole discretion, require any Indemnified Party to grant an assignment of the right of such Indemnified Party to assert a claim against any Collateral Source if the Indemnifying Party has first fully satisfied the claim by the Indemnified Party. In the event of such assignment, the Indemnifying Party will pursue such claim at its own expense.
(i) No right to indemnification under this Article 8 shall be limited by reason of any investigation or audit, conducted before or after the Closing, of any party hereto including, without limitation, the knowledge of such party of any breach of any representation, warranty, agreement or covenant by the other party at any time, or the decision by such party to complete the Closing provided that such party has informed the breaching party of its desire to preserve its rights in respect of such breach despite the Closing and the Indemnifying Party has waived in writing Section 8.4(a) hereof.
(j) No party shall have any liability to another party under this Article 8 for Damages (and no cost or expense relating to such Damages shall be included in determining the extent of Damages incurred by such party for purposes of Section 8.3) to the extent that:
(A) the Indemnified Party recovers insurance proceeds covering the Damages or otherwise recovers payments in respect of such Damages from any other source (whether in a lump sum or stream of payments); or
(B) the Indemnified Party's Tax liability is actually reduced as a result of a tax benefit to which the Indemnified Party becomes entitled in respect of the Damages.
(k) Buyer agrees to use its commercially reasonable efforts to give timely and effective written notice to the appropriate insurance carrier(s) of any occurrence or circumstances which, in the judgment of Buyer consistent with its customary risk management practices, appear likely to give rise to a claim against Buyer that is likely to involve one or more insurance policies of Buyer. Any such notice shall be given in good faith by Buyer without regard to the possibility of indemnification payments by the Sellers under this Article 8, and shall be processed by Buyer in good faith and in a manner consistent with its risk management practices involving claims for which no third party contractual indemnification is available.
(l) If at any time subsequent to the receipt by an Indemnified Party of an indemnity payment hereunder, such Indemnified Party (or any Affiliate thereof) receives any recovery, settlement or other similar payment with respect to the Damages for which it received such indemnity payment (including insurance proceeds and other payments pursuant to Section 8.6(h)(A) and a tax benefit pursuant to Section 8.6(h)(B)) (the "Recovery"), such Indemnified Party shall promptly pay to the Indemnifying Party an amount equal to the amount of such Recovery, less any expense incurred by such Indemnified Party (or its Affiliates) in connection with such Recovery, but in no event shall any such payment exceed the amount of such indemnity payment.
Appears in 3 contracts
Sources: Purchase Agreement (American Water Works Co Inc), Purchase Agreement (American Water Works Co Inc), Purchase Agreement (American Water Works Co Inc)
Procedures Relating to Indemnification. In order for any Party (a) Any party seeking indemnification under Section 6.01 (an the “Indemnified Party”) shall promptly give to be entitled to any indemnification from the other Party from whom indemnification is being sought (an the “Indemnifying Party”) notice of any matter which pursuant to Section 13.1 such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement stating must notify the Indemnifying Party in reasonable detail the factual basis writing of the third Person’s claim for which indemnification is sought (such claim, a “Third Party Claim”), within fifteen (15) Days after receipt by such Indemnified Party of such written notice of the Third Party Claim. Thereafter, the Indemnified Party shall deliver to the extent known Indemnifying Party, within five (5) Business Days after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party, and containing a reference Party relating to the provisions Third Party Claim. The Indemnifying Party will be entitled to participate in the defense of this Agreement in respect of which such right of indemnification is claimed or arisesa Third Party Claim made against an Indemnified Party and, if it so chooses and admits liability under the indemnity, to assume the defense thereof with counsel selected by the Indemnifying Party; provided that with respect to any such assumption, such counsel is not reasonably objected to by the failure to provide such notice shall not release Indemnified Party and the Indemnifying Party from any notifies the Indemnified Party of its obligations under this Article VI except intention to the extent the Indemnifying Party is materially prejudiced by assume such failure. With respect to any recovery or indemnification sought by an Indemnified Party from the Indemnifying Party that does not involve defense within sixty (60) Days after receipt of notice of a Third Party Claim, if . Should the Indemnifying Party does not notify so elect to assume the Indemnified defense of a Third Party within thirty (30) days from its receipt of the notice from the Indemnified Party that Claim and for so long as the Indemnifying Party disputes diligently pursues the defense of such claim, the Indemnifying Party shall not be deemed liable to have accepted and agreed with such claim.
(b) If an Indemnified Party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such notice, the Indemnified Party shall give for any legal expenses subsequently incurred by the Indemnifying Indemnified Party notice of such Third Party Claim; provided that in connection with the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent that the Indemnifying Party is materially prejudiced by such failuredefense thereof. If the Indemnifying Party acknowledges in writing its obligation elects to indemnify assume the defense of a Third Party Claim, the Indemnified Party hereunder against (x) will cooperate in all reasonable respects with the Indemnifying Party in connection with such defense, (y) will not admit liability with respect to, or settle, compromise or discharge, any Losses Third Party Claim, without the Indemnifying Party’s prior written consent and (z) will agree to any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party may result from recommend, that by its terms obligates the Indemnifying Party to pay the full settlement amount of the liability in connection with such Third Party Claim, then that releases the Indemnified Party completely in connection with such Third Party Claim, and that does not obligate the Indemnified Party to take or forbear to take any action, unless such action does not materially affect the Indemnified Party. In the event the Indemnifying Party shall assume the defense of any Third Party Claim, as provided above, the Indemnifying Party shall be entitled to participate in (but not control) such defense with its own counsel at its own expense. If the Indemnifying Party does not so assume and control the defense of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party may defend and settle the same in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto manner as is reasonably required by the Indemnified Party. No such Third Party Claim it may be settled by the Indemnifying Party without the prior written consent of the Indemnified Partydeem appropriate.
Appears in 3 contracts
Sources: Lease Agreement (EQT Midstream Partners, LP), Lease Agreement (EQT Midstream Partners, LP), Lease Agreement (EQT Midstream Partners, LP)
Procedures Relating to Indemnification. In order for a party (a) Any party seeking indemnification under Section 6.01 (an the “Indemnified Partyindemnified party”) shall promptly give to be entitled to any indemnification from the Party from whom indemnification is being sought other party (an the “Indemnifying Partyindemnifying party”) notice of any matter which such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification provided for under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed any Loss made by any person, firm, governmental authority or arises; provided that corporation against the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent the Indemnifying Party is materially prejudiced by such failure. With respect to any recovery or indemnification sought by an Indemnified Party from the Indemnifying Party that does not involve a Third Party Claim, if the Indemnifying Party does not notify the Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
(b) If an Indemnified Party shall receive notice of any claim or demand asserted by a third indemnified party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI), such indemnified party must notify the indemnifying party in writing of the Third Party Claim within thirty fourteen (3014) days after receipt by such indemnified party of written notice of the receipt of such notice, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided provided, however, that the failure to provide give such notice notification shall not release affect the Indemnifying Party from any of its obligations under this Article VI indemnification provided hereunder except to the extent that the Indemnifying Party is materially indemnifying party shall have been actually prejudiced by as a result of such failure. If Thereafter, the Indemnifying indemnified party shall deliver to the indemnifying party, within five (5) business days after the indemnified party’s receipt thereof, copies of all notices and documents (including court papers) received by the indemnified party relating to the Third Party acknowledges Claim. The indemnifying party will be entitled to participate in the defense of a Third Party Claim made against an indemnified party and, if it so chooses, to assume the defense thereof with counsel selected by the indemnifying party; provided, with respect to such assumption, (a) such counsel is reasonably acceptable to the indemnified party and (b) the indemnifying party first admits in writing its obligation liability to indemnify the Indemnified indemnified party with respect to all material elements of such claim and notifies the indemnified party of its intention to assume such defense within sixty (60) days of receipt of notice of a Third Party hereunder against Claim. Should the indemnifying party so elect to assume the defense of a Third Party Claim, the indemnifying party will not be liable to the indemnified party for any Losses that legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party elects to assume the defense of a Third Party Claim, the indemnified party (x) will cooperate in all reasonable respects with the indemnifying party in connection with such defense, (y) will not admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim without the indemnifying party’s prior written consent and (z) will agree to any settlement, compromise or discharge of a Third Party Claim which the indemnifying party may result from recommend and which by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim, then which releases the Indemnifying Party shall be entitled to assume and control the defense of indemnified party completely in connection with such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention which does not obligate the indemnified party to do so take or forbear to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expensetake any action. In the event that the Indemnifying Party exercises indemnifying party shall assume the right to undertake defense of any such defense against any such Third Party Claim as provided above, the Indemnified Party indemnified party shall cooperate with the Indemnifying Party be entitled to participate in (but not control) such defense and make available to with its own counsel at its own expense. If the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting indemnifying party does not so assume the defense against of any such Third Party Claim, the Indemnifying Party shall cooperate with indemnified party may defend the Indemnified Party same in such defense manner as it may deem appropriate; provided, that the indemnified party may not settle such claim or litigation on such terms as the indemnified party may deem appropriate, and make available the indemnifying party shall have no obligation to reimburse the indemnified party for such settlement, until after giving notice of same to the Indemnified Party, at indemnifying party and the Indemnifying Party’s expense, all such witnesses, records, materials and information in indemnifying party shall have accepted the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent terms of the Indemnified Partysettlement set forth therein or failed to object to such settlement terms within thirty (30) days of such notice.
Appears in 2 contracts
Sources: Facility Operating Agreement, Facility Operating Agreement (Environmental Power Corp)
Procedures Relating to Indemnification. In order for a party (a) Any party seeking indemnification under Section 6.01 (an the “Indemnified Party”) shall promptly give to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a Claim made by any Person against the Indemnified Party from whom (a “Third Party Claim”), such Indemnified Party must notify the party responsible for providing indemnification is being sought hereunder (an the “Indemnifying Party”) notice in writing, and in reasonable detail, of any matter which the Third Party Claim within 10 business days after receipt by such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis written notice of the claim to the extent known Third Party Claim (including copies of all notices and documents (including court papers) received by the Indemnified Party, and containing a reference Party relating to the provisions of this Agreement in respect of which such right of indemnification is claimed or arisesThird Party Claim)); provided provided, however, that the failure to provide give such notice notification shall not release affect the Indemnifying Party from any of its obligations under this Article VI indemnification provided hereunder except to the extent the Indemnifying Party is materially shall have been actually prejudiced by as a result of such failure. With respect to any recovery or indemnification sought by an Indemnified Party from the Indemnifying Party that does not involve If a Third Party Claim, if the Indemnifying Party does not notify the Claim is made against an Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claimParty, the Indemnifying Party shall be deemed entitled to have accepted participate in the defense thereof and, if it so chooses and agreed with such claim.
(b) If an Indemnified Party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such notice, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses therefor, to assume the defense thereof with counsel selected by the Indemnifying Party; provided that may result from such counsel is not reasonably objected to by the Indemnified Party. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, then the Indemnifying Party shall not be entitled to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so liable to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of for legal expenses subsequently incurred by the Indemnified Party in its sole and absolute discretion for connection with the same counsel to represent both defense thereof. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the Indemnifying Party), at its own expense, separate from the counsel employed by the Indemnifying Party, then 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 Indemnified Party for any period during which the Indemnifying Party has failed to assume the defense thereof (other than during the period prior to the time the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which have given notice of the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above) and as otherwise set forth in this Section 10.6. If the Indemnifying Party so elects to assume the defense of any Third Party Claim, the Indemnified Party Parties shall reasonably cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information with the Indemnifying Party in the Indemnified Party’s possession defense or under prosecution thereof. Such cooperation shall include the Indemnified Party’s control relating thereto as is reasonably required by retention and (upon the Indemnifying Party. Similarly, in ’s request) the event provision to the Indemnified Indemnifying Party is, directly or indirectly, conducting the defense against any of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the Indemnifying Party shall cooperate have assumed the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld). If the Indemnifying Party shall have assumed the defense of a Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of a Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim, which releases the Indemnifying Party completely in connection with such Third Party Claim and which would not otherwise adversely affect the Indemnified Party. Notwithstanding the foregoing, the Indemnifying Party 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 Indemnified Party in defending such Third Party Claim) if (i) the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party which the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages or (ii) if (A) the Indemnifying Party has failed after a reasonable period of time to assume such defense and to employ counsel, or (B) as evidenced by the opinion of counsel, different defenses would be available to the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all action such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s that a conflict of interest exists that makes control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without not advisable. In such an event, the prior written consent Indemnified Party shall be entitled to, with respect to clause (i), assume the defense of the Indemnified Partyportion relating to money damages and, with respect to clause (ii), assume the defense of the entire proceeding. The indemnification required by Sections 10.1, 10.2 and 10.3 shall be made by periodic payments of the amount thereof during the course of the investigation, remediation or defense, as and when bills are received or loss, liability, claim, damage or expense is incurred. All Claims under Sections 10.1, 10.2, or 10.3 other than Third Party Claims shall be governed by Section 10.7 below.
Appears in 2 contracts
Sources: Facilities Sale Agreement (TransMontaigne Partners L.P.), Facilities Sale Agreement (TransMontaigne Partners L.P.)
Procedures Relating to Indemnification. (a) Any party seeking indemnification under Section 6.01 (an “Indemnified Party”) shall promptly give Following the Party from whom indemnification is being sought (an “Indemnifying Party”) notice discovery by a Person of any matter which such Indemnified Party has determined has given facts or conditions that would reasonably be expected to give rise to a right of Loss or Losses for which indemnification under this Agreement stating in reasonable detail Article IX can be obtained, the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement in respect of which such right of Party seeking indemnification is claimed or arises; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to IX with respect thereto (the extent the Indemnifying Party is materially prejudiced by such failure. With respect to any recovery or indemnification sought by an “Indemnified Party from the Indemnifying Party that does not involve a Third Party Claim, if the Indemnifying Party does not notify the Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
(b) If an Indemnified Party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party ClaimParty”) against it or which may give rise to a claim for Loss under this Article VIshall, within thirty (30) days thereafter, provide written notice to the Party from whom indemnification is sought (the “Indemnifying Party”), setting forth the facts and circumstances in reasonable detail (to the extent known) relating to such Loss or Losses, the amount of Loss or Losses (or a non-binding, reasonable estimate thereof if the receipt actual amount is not known or liquidated) and the specific Section(s) of such notice, this Agreement (to the extent then determinable) upon which the Indemnified Party shall give the Indemnifying is relying in seeking such indemnification (an “Indemnification Notice”); provided, however, that any failure of an Indemnified Party notice of such Third Party Claim; provided that the failure to provide timely deliver such notice shall not release limit the obligations of the Indemnifying Party from any of its obligations under this Article VI hereunder except to the extent that (and only to the extent that) such failure to timely deliver such notice actually prejudices the Indemnifying Party. Within sixty (60) days after delivery of an Indemnification Notice, the Indemnifying Party is materially prejudiced by such failure. If shall deliver to the Indemnified Party a Response, in which the Indemnifying Party acknowledges in writing its obligation to indemnify shall: (i) agree that the Indemnified Party hereunder against is entitled to receive all of the Claimed Amount (in which case the Response shall be accompanied by payment by the Indemnifying Party in cash equal to the Claimed Amount by wire transfer of immediately available funds), (ii) agree that the Indemnified Party is entitled to receive the Agreed Amount (in which case the Response shall be accompanied by payment by the Indemnifying Party in cash equal to the Agreed Amount by wire transfer of immediately available funds) or (iii) dispute that the Indemnified Party is entitled to receive any Losses that may result from of the Claimed Amount (a “Dispute”). If no Response is delivered by the Indemnifying Party within sixty (60) days following the Indemnified Party’s receipt of written confirmation of receipt of such Third Party ClaimIndemnification Notice by the General Counsel of the Indemnifying Party, then the Indemnifying Party shall be entitled deemed, to assume and control the defense extent such Indemnification Notice so states, to have agreed that all of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so the Claimed Amount is owed to the Indemnified Party within fifteen (15) days Party. For purposes of the foregoing sentence, “written confirmation” shall include receipt confirming the delivery of facsimile, receipt of such notice from registered or certified mail, receipt of an internationally recognized overnight mail courier service and receipt of e-mail delivery. Acceptance by the Indemnified Party of partial payment of any Claimed Amount shall be without prejudice to the Indemnified Party; provided ’s right to claim the balance of any such Claimed Amount. During the sixty (60) day period following the delivery of a Response that that if there exists or is reasonably likely to exist reflects a conflict of interest that would make it inappropriate in Dispute, the judgment of Indemnifying Party and the Indemnified Party in its sole and absolute discretion for shall use good faith efforts to resolve the same counsel to represent both Dispute. If the Indemnified Party and the Indemnifying PartyParty shall not so resolve such claim during such period, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any initiate such defense against any proceedings and seek such Third Party Claim remedies as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or may be permitted under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense terms of this Agreement and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified Partyapplicable Law.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Xcerra Corp), Master Sale and Purchase Agreement (LTX-Credence Corp)
Procedures Relating to Indemnification. (ai) Any party Party seeking indemnification under this Section 6.01 7.2 (an “Indemnified Party”) shall promptly give the Party from whom indemnification is being sought (an “Indemnifying Party”) notice of any matter which such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis nature of the claim to the extent known by the Indemnified Partyclaim, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises; provided provided, however, that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI Section 7.2 except to the extent the Indemnifying Party is materially prejudiced by such failure. With respect to any recovery or indemnification sought by an Indemnified Party from the Indemnifying Party that does not involve a Third Party Claim, if the Indemnifying Party does not notify the Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim. If the Indemnifying Party has disputed a claim for indemnification (including any Third Party Claim), the Indemnifying Party and the Indemnified Party shall proceed in good faith to negotiate a resolution to such dispute. If the Indemnifying Party and the Indemnified Party cannot resolve such dispute in thirty (30) days after delivery of the dispute notice by the Indemnifying Party, such dispute shall be resolved by arbitration pursuant to Section 8.3.
(bii) If an Indemnified Party shall receive notice of any claim Legal Proceeding, audit, demand or demand asserted by a third party assessment (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VISection 7.2, within thirty (30) days of the receipt of such notice, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided provided, however, that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI Section 7.2 except to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then the Indemnifying Party shall be entitled to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that provided, however, that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified Party.
Appears in 2 contracts
Sources: Share Purchase Agreement (Caissa Sega Tourism Culture Development Group Co., Ltd.), Share Purchase Agreement (JD.com, Inc.)
Procedures Relating to Indemnification. (a) Any If an Indemnified Party shall desire to assert any claim for indemnification provided for under this Article VII in respect of, arising out of or involving a claim or demand made by any Person (other than a party seeking hereto or Affiliate thereof) against the Indemnified Party (a “Third-Party Claim”), such Indemnified Party shall notify the party liable for such indemnification under Section 6.01 (an “Indemnified Party”) shall promptly give the Party from whom indemnification is being sought (an “Indemnifying Party”) notice in writing, and in reasonable detail (taking into account the information then available to such Indemnified Party), of any matter which the Third-Party Claim promptly after receipt by such Indemnified Party has determined has given or would reasonably be expected of written notice of the Third-Party Claim; provided, however, that failure to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises; provided that the failure to provide such notice notification shall not release affect the Indemnifying Party from any of its obligations under this Article VI indemnification provided hereunder except to the extent the Indemnifying Party is materially shall have been actually prejudiced by as a result of such failure. With respect to any recovery or indemnification sought by an The Indemnified Party from shall deliver to the Indemnifying Party, promptly 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; provided, however, that the failure to deliver such copies shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party that does not involve shall have been actually prejudiced as a Third result of such failure.
(b) If a Third-Party Claim, if the Indemnifying Party does not notify the Claim is made against an Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claimParty, the Indemnifying Party shall be deemed entitled to participate in the defense thereof and, if it so chooses to assume the defense thereof with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. Should the Indemnifying Party so elect to assume the defense of a Third-Party Claim, the Indemnifying Party shall not be liable to the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof, unless the Third-Party Claim involves potential conflicts of interest or substantially different defenses for the Indemnified Party and the Indemnifying Party based on the advice of counsel. If the Indemnifying Party assumes such defense, the Indemnified Party shall have accepted the right to participate in defense thereof and agreed to employ counsel, at its own expense (except as provided in the immediately preceding sentence), separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. If the Indemnifying Party chooses to defend any Third-Party Claim, all the parties hereto shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records and information that are reasonably relevant to such Third-Party Claim, and use reasonable efforts to make employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the Indemnifying Party shall have assumed the defense of a Third-Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, such claimThird-Party Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld). The Indemnifying Party may pay, settle or compromise a Third-Party Claim without the written consent of the Indemnified Party, so long as such settlement includes (A) an unconditional release of the Indemnified Party from all liability in respect of such Third-Party Claim, (B) does not subject the Indemnified Party to any injunctive relief or other equitable remedy and (C) does not include a statement or admission of fault, culpability or failure to act by or on behalf of any Indemnified Party.
(bc) If an Indemnified Party shall receive notice of desire to assert any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss indemnification provided for under this Article VIVII other than a claim in respect of, within thirty (30) days arising out of the receipt of or involving a Third-Party Claim, such notice, the Indemnified Party shall give notify the Indemnifying Party notice in writing, and in reasonable detail (taking into account the information then available to such Indemnified Party), of such Third Party Claimclaim promptly after becoming aware of the existence of such claim; provided that the failure to provide give such notice notification shall not release affect the Indemnifying Party from any of its obligations under this Article VI indemnification provided for hereunder except to the extent that the Indemnifying Party is materially shall have been actually prejudiced by as a result of such failure. If the Indemnifying Party acknowledges in writing does not respond to such notice within 45 days after its obligation receipt, it shall have no further right to indemnify contest the Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then the Indemnifying Party shall be entitled to assume and control the defense validity of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified Partyclaim.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Anheuser-Busch InBev S.A.), Stock Purchase Agreement (Constellation Brands, Inc.)
Procedures Relating to Indemnification. (a) Any A party seeking indemnification under Section 6.01 pursuant to this Article VIII (an “Indemnified Party”) shall promptly give prompt written notice to the Party party from whom such indemnification is being sought (an the “Indemnifying Party”) notice of the assertion of any matter claim, the incurrence of any Damages, or the commencement of any action, suit or proceeding of which such Indemnified Party it has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, knowledge and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent the Indemnifying Party is materially prejudiced by such failure. With respect to any recovery or indemnification indemnity may be sought by an Indemnified Party from the Indemnifying Party that does not involve a Third Party Claim, if the Indemnifying Party does not notify the Indemnified Party within thirty hereunder (30) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
(b) If an Indemnified Party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it ), and will give the Indemnifying Party such information with respect thereto as the Indemnifying Party may reasonably request; provided, however, that no delay or which may give rise failure on the part of the Indemnified Party in so notifying the Indemnifying Party shall limit any liability or obligation for indemnification pursuant to a claim for Loss under this Article VI, within thirty (30) days VIII except to the extent of the receipt any damage or liability caused by or arising out of such noticedelay or failure. Thereafter, the Indemnified Party shall give deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party notice of relating to such Third Party Claim; provided that the failure to provide such notice shall not release the . The Indemnifying Party from any of its obligations under this Article VI except shall have the right, exercisable by written notice to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against after receipt of notice from the Indemnified Party of the commencement of or assertion of any Losses that claim or action, suit or proceeding by a third party in respect of which indemnity may result from such Third Party Claimbe sought hereunder, then the Indemnifying Party shall be entitled to assume and control the defense of such Third Party Claim at its expense which involves (and through continues to involve) solely monetary damages using counsel of its choice if it gives notice of its intention reasonably satisfactory to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided provided, that (A) the Indemnifying Party expressly agrees in such notice that, as between the Indemnifying Party and the Indemnified Party, solely the Indemnifying Party shall be obligated to satisfy and discharge the Third Party Claim, (B) such Third Party Claim does not include a request or demand for injunctive or other equitable relief, and (C) the Indemnifying Party makes reasonably adequate provision to assure the Indemnified Party of the ability of the Indemnifying Party to satisfy the full amount of any adverse monetary judgment that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of result.
(b) Neither the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, nor the Indemnifying Party shall cooperate admit any liability with the Indemnified Party in such defense and make available to the Indemnified Partyrespect to, at the Indemnifying Party’s expenseor settle, all such witnesses, records, materials and information in the Indemnifying Party’s possession compromise or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such discharge any Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed.
(c) The Indemnifying Party or the Indemnified Party, as the case may be, shall have the right to participate in (but not control) the defense of any Third Party Claim which the other party is defending as provided in this Agreement.
(d) 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.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Aqua America Inc), Stock Purchase Agreement (Connecticut Water Service Inc / Ct)
Procedures Relating to Indemnification. (a) Any In order for a party seeking indemnification under Section 6.01 (an the “Indemnified Party”) shall promptly give to be entitled to any indemnification provided for under this Agreement in respect of a claim or demand made by any other Person against the Indemnified Party from whom indemnification is being sought (an a “Third-Party Claim”), such Indemnified Party must notify the indemnifying party (the “Indemnifying Party”) notice in writing, and in reasonable detail, of any matter which the Third-Party Claim as promptly as reasonably possible after receipt, but in no event later than 10 Business Days after receipt, by such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis notice of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arisesThird-Party Claim; provided that the failure to provide give such notice notification on a timely basis shall not release affect the Indemnifying Party from any of its obligations under this Article VI indemnification provided hereunder except to the extent the Indemnifying Party is materially shall have been actually prejudiced by as a result of such failure. With respect to any recovery or indemnification sought by an Indemnified Party from the Indemnifying Party that does not involve a Third Party ClaimThereafter, if the Indemnifying Party does not notify the Indemnified Party shall deliver to the Indemnifying Party, within thirty five Business Days after the Indemnified Party’s receipt thereof, copies of all notices and documents (30including court papers) days from its receipt of the notice from received by the Indemnified Party that relating to the Indemnifying Third-Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claimClaim.
(b) If a Third-Party Claim is made against an Indemnified Party shall receive notice of any claim or demand asserted by a third party (eachParty, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such notice, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then the Indemnifying Party shall be entitled to participate in the defense thereof and, if it so chooses, to assume the defense thereof with counsel selected by the Indemnifying Party and control reasonably satisfactory to the Indemnified Party. Notwithstanding the foregoing, each Stockholder Representative (on behalf of the Indemnifying Company Stockholders) shall continue to be entitled to assert any limitation on any claims contained in Section 9.02 and Section 9.03. Should an Indemnifying Party so elect to assume the defense of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Third-Party Claim, the Indemnifying Party shall cooperate with not be liable to the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right to participate in the defense thereof and make available to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood, however, that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for the reasonable and documented fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof. If the Stockholder Representatives (on behalf of the Indemnifying Company Stockholders) are the Indemnifying Parties, the reasonable and documented expenses of the Stockholder Representatives incurred in defending a Third-Party Claim (or any participation in a Third-Party Claim that could result in Damages to the Indemnified PartyStockholder Representatives) shall be reimbursed, at when and as incurred. If the Indemnifying Party chooses to defend any Third-Party Claim, all the parties hereto shall cooperate in the defense or prosecution of such Third-Party Claim. Such cooperation shall include the retention and (upon the Indemnifying Party’s expense, all such witnesses, records, materials and information in request) the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by provision to the Indemnifying Party of records and information which are reasonably relevant to such Third-Party Claim, and making employees and other representatives and advisors available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. If the Indemnifying Party shall have assumed the defense of a Third-Party Claim, no Indemnified Party shall admit any liability with respect to, or settle, compromise or discharge, any Third-Party Claim without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld or delayed). If the Indemnifying Party shall have elected not to assume the defense of or fails to confirm its obligation to indemnify for a Third-Party Claim, the Indemnifying Party shall not admit any liability with respect to, or settle, compromise or discharge, any Third-Party Claim without the prior written consent of the Indemnified PartyParty (which consent shall not be unreasonably withheld or delayed).
(c) This Section 9.07 shall not apply to claims for Damages asserted directly by an Indemnified Party against an Indemnifying Party where no Third-Party Claim has been made.
Appears in 2 contracts
Sources: Merger Agreement (Real Goods Solar, Inc.), Merger Agreement (Real Goods Solar, Inc.)
Procedures Relating to Indemnification. (ai) Any In order for a party seeking (the "INDEMNIFIED PARTY") to be entitled to any indemnification provided for under Section 6.01 (an “Indemnified Party”) shall promptly give the Party from whom indemnification is being sought (an “Indemnifying Party”) notice of any matter which such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement in respect of which a claim or demand made by any Person against the Indemnified Party (a "THIRD PARTY CLAIM"), such right Indemnified Party must notify the indemnifying party (the "INDEMNIFYING PARTY") in writing, and in reasonable detail, of indemnification is claimed or arisesthe Third Party Claim as promptly as reasonably possible after receipt by such Indemnified Party of notice of the Third Party Claim; provided that the PROVIDED THAT failure to provide give such notice notification on a timely basis shall not release affect the Indemnifying Party from any of its obligations under this Article VI indemnification provided hereunder except to the extent the Indemnifying Party is materially shall have been actually prejudiced by as a result of such failure. With respect to any recovery or indemnification sought by an Indemnified Party from the Indemnifying Party that does not involve a Third Party Claim, if the Indemnifying Party does not notify the Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
(b) If an Indemnified Party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such noticeThereafter, the Indemnified Party shall give 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) received by the Indemnified Party notice of such relating to the Third Party Claim; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent that the Indemnifying Party is materially prejudiced by such failure. .
(ii) If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such a Third Party ClaimClaim is made against an Indemnified Party, then the Indemnifying Party shall be entitled to assume and control participate in the defense of such Third Party Claim at its expense thereof and through to assume the defense thereof with counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required selected by the Indemnifying Party. Similarly, in the event the Indemnified Should an Indemnifying Party is, directly or indirectly, conducting so elect to assume the defense against any such of a Third Party Claim, the Indemnifying Party shall cooperate with not be liable to the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof. If the Indemnifying Party assumes such defense and make available to defense, the Indemnified PartyParty shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party’s expense, it being understood, however, that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof. If the Indemnifying Party chooses to defend any Third Party Claim, all the parties hereto shall cooperate in the defense or prosecution of such witnesses, records, materials Third Party Claim. Such cooperation shall include the retention and information in (upon the Indemnifying Party’s possession or under 's request) the provision to the Indemnifying Party’s control relating thereto as is Party of records and information which are reasonably required by the Indemnified Party. No relevant to such Third Party Claim may be settled by Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the Indemnifying Party shall have assumed the defense of a Third Party Claim, neither Purchaser nor any of its Affiliates shall admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim for which any sums are recoverable hereunder without the prior written consent of the Indemnified PartySellers.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Boise Cascade Holdings, L.L.C.), Purchase and Sale Agreement (Boise Cascade Holdings, L.L.C.)
Procedures Relating to Indemnification. (a) Any party A Party seeking indemnification under pursuant to Section 6.01 8(b) or Section 8(c), (an “Indemnified Party”) shall promptly give prompt notice to the Party from whom such indemnification is being sought (an the “Indemnifying Party”) notice of the assertion of any matter which such Indemnified Party has determined has given claim or would reasonably be expected to give rise to assessment, or the commencement of any action, suit, audit or proceeding, by a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement third party in respect of which indemnity may be sought hereunder (a “Third Party Claim”) and will give the Indemnifying Party such right of indemnification is claimed or arisesinformation with respect thereto as the Indemnifying Party may reasonably request; provided provided, however, that the no failure to provide give such notice shall not release relieve the Indemnifying Party from of any of its obligations under this Article VI liability hereunder (except to the extent the Indemnifying Party is materially prejudiced by such failurehas suffered actual prejudice thereby). With respect to any recovery or indemnification sought by an Thereafter, the Indemnified Party from shall deliver to the Indemnifying Party, within ten (10) business days after the Indemnified Party's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party that does not involve a relating to the Third Party Claim, if the . The Indemnifying Party does not notify shall have the right, exercisable by written notice (the “Notice”) to the Indemnified Party within thirty (30) days from its of receipt of the notice from the Indemnified Party that of the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
(b) If an Indemnified Party shall receive notice commencement of or assertion of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such notice, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then the Indemnifying Party shall be entitled to assume and control the defense of such Third Party Claim at its expense Claim, using counsel selected by the Indemnifying Party and through counsel of its choice if it gives notice of its intention to do so reasonably acceptable to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that Should the Indemnifying Party exercises the right so elect to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting assume the defense against any such of a Third Party Claim, the Indemnifying Party shall cooperate with will not be liable to the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof. Regardless of whether the Indemnifying Party elects to assume the defense of any such defense and make available to Third Party Claim, (a) the Indemnified PartyParty shall not admit any liability with respect to, at the Indemnifying Party’s expenseor settle, all such witnessescompromise or discharge, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may without the Indemnifying Party's prior written consent, which shall not be settled by unreasonably withheld, delayed or conditioned and (b) the Indemnifying Party will not admit any liability, consent to the entry of any judgment or enter into any settlement or compromise with respect to such Third Party Claim, without the prior written consent of the Indemnified Party, which shall not be unreasonably withheld, delayed or conditioned, unless such settlement or judgment involves only the payment of money damages by the Indemnifying Party and does not involve an injunction or other equitable relief that may affect an Indemnified Party and includes an unconditional release of the Indemnified Party. The Indemnifying Party or the Indemnified Party, as the case maybe, 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. Whether or not the Indemnifying Party chooses to defend or prosecute any claim involving a 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 reasonably requested in connection therewith. Such cooperation shall include reasonable access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder, and the Indemnifying Party shall reimburse the Indemnified Party for all its reasonable out-of-pocket expenses in connection therewith.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Uil Holdings Corp), Securities Purchase Agreement (Uil Holdings Corp)
Procedures Relating to Indemnification. In order for a Person (a) Any party seeking indemnification under Section 6.01 (an the “Indemnified Party”) shall promptly give the Party from whom to be entitled to any indemnification is being sought (an “Indemnifying Party”) notice of any matter which such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification provided for under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this IP License Agreement in respect of, arising out of which such right of indemnification is claimed or arises; provided that the failure to provide such notice shall not release the Indemnifying Party from involving a claim or demand made by any of its obligations under this Article VI except to the extent the Indemnifying Party is materially prejudiced by such failure. With respect to any recovery or indemnification sought by an Indemnified Party from the Indemnifying Party that does not involve a Third Party Claim, if the Indemnifying Party does not notify Person against the Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
(b) If an Indemnified Party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI), within thirty (30) days such Indemnified Party must notify the indemnifying party in writing, and in reasonable detail, of the Third Party Claim as promptly as reasonably possible after receipt by such Indemnified Party of notice of the Third Party Claim; provided, however, that failure to give such notification 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 noticefailure. Thereafter, the Indemnified Party shall give deliver to the Indemnifying indemnifying party, within five (5) Business Days after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court filings and related papers) received by the Indemnified Party notice of such relating to the Third Party Claim; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent that the Indemnifying Party is materially prejudiced by such failure. If a Third Party Claim is made against an Indemnified Party, the Indemnifying Party indemnifying party shall be entitled to participate in the defense thereof and, if it so chooses and acknowledges in writing its obligation to indemnify the Indemnified Party hereunder therefor, to assume the defense thereof with counsel selected by the indemnifying party and reasonably satisfactory to the Indemnified Party and to settle such suit, action, claim or proceeding in its discretion with a full release of the Indemnified Party and no admission of criminal liability. Notwithstanding any acknowledgment made pursuant to the immediately preceding sentence, the indemnifying party shall continue to be entitled to assert any limitation on its indemnification responsibility contained in Section 11. Should the indemnifying party so elect to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof unless the indemnifying party has substantially and materially failed to defend, contest or otherwise protest in a timely manner against Third Party Claims. If the indemnifying party assumes such defense, the Indemnified Party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the indemnifying party, it being understood, however, that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of counsel employed by the Indemnified Party for any Losses period during which the indemnifying party has not assumed the defense thereof. If the indemnifying party chooses to defend any Third Party Claim, all the parties hereto shall cooperate in the defense or prosecution of such Third Party Claim. Such cooperation shall include the retention and (upon the indemnifying party’s request) the provision to the indemnifying party of records and information that may result from are reasonably relevant to such Third Party Claim, then and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the Indemnifying Party indemnifying party shall be entitled to assume and control have assumed the defense of such a Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided aboveClaim, the Indemnified Party shall cooperate not admit any liability with the Indemnifying Party in such defense and make available to the Indemnifying Partyrespect to, at the Indemnifying Party’s expenseor settle, all witnessescompromise or discharge, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the indemnifying party’s prior written consent, which consent of the Indemnified Partyshall not be unreasonably withheld, unreasonably delayed or unreasonably conditioned.
Appears in 2 contracts
Sources: Intellectual Property License Agreement (Opnext Inc), Intellectual Property License Agreement (Opnext Inc)
Procedures Relating to Indemnification. (a) Any party seeking indemnification An indemnified person under Section 6.01 Sections 8.2, 8.3 or 8.4 (an the “Indemnified Party”) shall promptly give prompt written notice to an indemnifying party (the Party from whom indemnification is being sought (an “Indemnifying Party”) notice of any matter which such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement Loss in respect of which such right Indemnifying Party has a duty to indemnify such Indemnified Party under Sections 8.2, 8.3 or 8.4 (a “Claim”), specifying in reasonable detail the nature of the Loss for which indemnification is claimed sought, the section or arises; provided sections of this Agreement or the PE&E Agreement to which the Claim relates and the amount of the Loss involved (or, if not then determinable, a reasonable good faith estimate of the amount of the Loss involved), except that the any delay or failure so to provide such notice shall not release notify the Indemnifying Party from any shall only relieve the Indemnifying Party of its obligations under this Article VI except hereunder to the extent extent, if at all, that it is prejudiced by reason of such delay or failure. Any such notice to be given to an Indemnifying Party under Section 8.2 or 8.3 or by an Indemnified Party under Section 8.4 shall be given to or by the Representative.
(b) If a Claim results from any claim, suit, action or cause of action brought or asserted by a third party (a “Third Party Claim”), the Indemnifying Party is materially prejudiced shall assume the defense thereof, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of all expenses. The Indemnified Party shall have the right to employ separate counsel in such Third Party Claim and participate in such defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party fails to assume the defense of any Third Party Claim within 10 days after notice thereof, the Indemnified Party shall have the right to undertake the defense, compromise or settlement of such Third Party Claim for the account of the Indemnifying Party, subject to the right of the Indemnifying Party to assume the defense of such Third Party Claim with counsel reasonably satisfactory to the Indemnified Party at any time prior to the compromise, settlement or final determination thereof. Anything in this Section 8.5 to the contrary notwithstanding, the Indemnifying Party shall not, without the Indemnified Party’s prior written consent, settle or compromise any Third Party Claim or consent to the entry of any judgment with respect to any Third Party Claim which would have an adverse effect on the Indemnified Party. The Indemnifying Party may, without the Indemnified Party’s prior written consent, compromise or settle any such Third Party Claim or consent to entry of any judgment with respect to any Third Party Claim which requires solely money damages paid by the Indemnifying Party, and which includes as an unconditional term thereof the release by the claimant or the plaintiff of the Indemnified Party from all liability in respect of such failure. Third Party Claim.
(c) With respect to any recovery or indemnification sought by an Indemnified Party from the Indemnifying Party that does not involve Claim other than a Third Party Claim, if the Indemnifying Party shall have 20 days from receipt of notice from the Indemnified Party of such Claim within which to respond thereto. If the Indemnifying Party does not notify the Indemnified Party respond within thirty (30) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claim20-day period, the Indemnifying Party shall be deemed to have accepted responsibility to make payment and agreed with shall have no further right to contest the validity of such claim.
(b) Claim. If an the Indemnifying Party notifies the Indemnified Party shall receive notice of any claim within such 20-day period that it rejects such Claim in whole or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such noticein part, the Indemnified Party shall give the Indemnifying Party notice of be free to pursue such Third Party Claim; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that remedies as may result from such Third Party Claim, then the Indemnifying Party shall be entitled to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so available to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified Partyapplicable law.
Appears in 2 contracts
Sources: Merger Agreement (Matrixone Inc), Merger Agreement (Matrixone Inc)
Procedures Relating to Indemnification. (ai) Any party seeking indemnification under this Section 6.01 9.2 (an “Indemnified Party”) shall promptly give the Party party from whom indemnification is being sought (an “Indemnifying Party”) notice (a “Claim Notice”) of any matter which such Indemnified Party has determined has given or would could reasonably be expected to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis nature of the claim to the extent known by the Indemnified Partyclaim, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises; provided provided, however, that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI Section 9.2 except to the extent the Indemnifying Party is materially prejudiced by such failure. With respect to any recovery or indemnification sought by an Indemnified Party from the Indemnifying Party that does not involve a Third Party Claim, if the Indemnifying Party does not notify the Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party Claim Notice that the Indemnifying Party disputes such claimclaim (the “Dispute Notice”), the Indemnifying Party shall be deemed to have accepted and agreed with such claim.. If the Indemnifying Party has disputed a claim for indemnification (including any Third Party Claim), the Indemnifying Party and the Indemnified Party shall proceed in good faith to negotiate a resolution to such dispute. If the Indemnifying Party and the Indemnified Party cannot resolve such dispute in thirty (30) days after delivery of the Dispute Notice, such dispute shall be resolved by pursuant to Section 10.3
(bii) If The obligations and liabilities of an Indemnifying Party under this Section 9.2 with respect to Losses arising from claims of any third party which are subject to the indemnification provided for in this Section 9.2 (“Third Party Claims”) shall be governed by and contingent upon the following additional terms and conditions: if an Indemnified Party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such notice, the Indemnified Party shall give the Indemnifying Party notice of such Third Party ClaimClaim within thirty (30) days of the receipt by the Indemnified Party of such notice and a copy of the papers served with respect to such claim (if any); provided provided, however, that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI Section 9.2 except to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then the Indemnifying Party shall be entitled entitled, but not obligated, to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice reasonably acceptable to the Indemnified Party if it gives notice of its intention to do so to the Indemnified Party within fifteen twenty (1520) days Business Days of the receipt of such the notice from furnished by the Indemnified PartyParty pursuant to the first sentence of this Section 9.2(d)(ii) provided, however, that in the event the Indemnifying Party assumes and controls the defense of such Third Party Claim, the Indemnified Party may, at its sole cost and expense, participate in the defense of such Third Party Claim; provided that provided, further, that if there exists or is reasonably likely counsel to exist the Indemnified Party advises such Indemnified Party in writing that the Third Party Claim involves a conflict of interest (other than one of a monetary nature) that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Indemnifying Party and the Indemnifying Indemnified Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the cost and expense of the Indemnifying Party’s expenseParty (except that the Indemnifying Party shall not be obligated to pay the fees and expenses of more than one separate counsel for all Indemnified Parties, taken together). In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, it will keep the Indemnified Party reasonably informed of progress of the defense of such Third Party Claim, and the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, it will keep the Indemnifying Party reasonably informed of progress of the defense of such Third Party Claim, and the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, Party all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No ; provided, however, the Indemnified Party shall not, without the consent of the Indemnifying Party (not to be unreasonably withheld, delayed or conditioned), settle or compromise any such Third Party Claim may be settled by or consent to the entry of any judgment in respect of such Third Party Claim. The rights of any Indemnifying Party shall be subrogated to any right of action (including indemnification, cross-claims and counterclaims) that the Indemnified Party may have against any other Person with respect to any matter giving rise to a claim for indemnification hereunder. The Indemnifying Party shall not, without the prior written consent of the Indemnified PartyParty (not to be unreasonably withheld, delayed or conditioned), (i) settle or compromise any Third Party Claim or consent to the entry of any judgment which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnified Party of a written release from all liability in respect of such Third Party Claim or (ii) settle or compromise any Third Party Claim in any manner that may adversely affect the Indemnified Party other than as a result of money damages or other money payments.
Appears in 2 contracts
Sources: Share Purchase Agreement (Jinglong Group Co., Ltd.), Share Purchase Agreement (JA Solar Holdings Co., Ltd.)
Procedures Relating to Indemnification. (a) Any party seeking In order for an Indemnitee to be entitled to any indemnification provided for under Section 6.01 (an “Indemnified Party”) shall promptly give the Party from whom indemnification is being sought (an “Indemnifying Party”) notice of any matter which such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement in respect of, arising out of which or involving a claim made by any Person who is not an Indemnitee against such right Indemnitee (a "Third Party Claim"), such Indemnitee must notify the party who may become obligated to provide indemnification hereunder (the "Indemnifying Party") in writing, and in reasonable detail, of indemnification is claimed or arisesthe Third Party Claim reasonably promptly, and in any event within 20 days after receipt by such Indemnitee of written notice of the Third Party Claim; provided provided, however, that the failure to provide give such notice notification shall not release affect the Indemnifying Party from any of its obligations under this Article VI indemnification provided hereunder except to the extent the Indemnifying Party is shall have been actually and materially prejudiced by as a result of such failure. With ; provided, further, however, that no such notice shall need to be given by any B&W Indemnitee with respect to Third Party Claims arising as a result of any recovery or indemnification sought Action pending as of the date of this Agreement. After any required notification (if applicable), 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.
(b) If a Third Party Claim is made against an Indemnified Party from Indemnitee, the Indemnifying Party shall be entitled to participate in the defense thereof and, if it so chooses, 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; provided, however, that (i) the Indemnifying Party shall not be entitled to assume such defense unless it first acknowledges in writing its obligation hereunder to indemnify the Indemnitee with respect to all material elements of such Third Party Claim and (ii) the Indemnifying Party shall not be entitled to assume the defense of a Third Party Claim if (but only to the extent that) the Indemnitee reasonably determines that it has defenses, claims or positions that are unique, separate or distinct from the defenses, claims or positions that might be available to other Persons relating to such Third Party Claim (such as jurisdictional defenses). Except as set forth below, 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 expenses subsequently incurred by the Indemnitee in connection with the defense thereof. If the Indemnifying Party assumes such defense, the Indemnitee shall have the right to participate, at its own expense, in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense; provided, however, that an Indemnitee may reassume control of any defense if the Indemnitee reasonably believes that the Indemnifying Party does not have the financial capability to fully indemnify the Indemnitee for the Indemnifiable Losses that may be incurred by the Indemnitee as a result of the applicable Third Party Claim or if the Indemnifying Party fails to diligently prosecute the defense of such Third Party Claim within 20 calendar days after receipt of written notice of such failure to prosecute by the Indemnitee. The Indemnifying Party shall be liable for the reasonable fees and expenses of counsel employed by the Indemnitee (i) for any period during which the Indemnifying Party has not assumed the defense thereof, (ii) as a result of the retention of control pursuant to the proviso to the first sentence of this Section 5.03(b) or (iii) following the reassumption of control of any defense pursuant to the proviso to the preceding sentence. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any 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 cannot be separated from any related claim for money damages. If such equitable or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages and, in such event, the Indemnifying Party shall continue to be liable for the reasonable fees and expenses of counsel employed by the Indemnitee with respect to the portion of the defense of such Third Party Claim that the Indemnifying Party has not assumed. The indemnification required by Section 5.01 or 5.02, as the case may be, shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when invoices are received or the Indemnifiable Loss is incurred. If the Indemnifying Party chooses to defend or prosecute a Third Party Claim (i) all the parties hereto reasonably necessary or appropriate for such defense or prosecution shall cooperate in the defense or prosecution thereof, which cooperation shall include the retention and (upon the Indemnifying Party's request) the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, (ii) the Indemnifying Party shall keep the Indemnitee reasonably informed of all significant developments in connection with the defense or prosecution of such Third Party Claim and (iii) the Indemnitee shall agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend (after representing to the Indemnitee that such settlement is reasonably likely to be acceptable to the parties to the Third Party Claim) and which by its terms obligates the Indemnifying Party to pay the full amount of Liability of the Indemnitee in connection with such Third Party Claim; provided, however, that, unless the Indemnitee in its sole discretion otherwise consents in writing, the Indemnifying Party shall not consent to entry of any Judgment or enter into any settlement (x) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its affiliates (other than the Indemnifying Party and its Subsidiaries) or their respective properties or (y) that does not include as an unconditional term thereof the giving by each claimant or plaintiff to such Indemnitee of a release from all Liability with respect to such claim. If the Indemnifying Party shall have assumed the defense of a Third Party Claim, the Indemnitee shall not admit any Liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent.
(c) In order for an Indemnitee to be entitled to any indemnification provided for under this Agreement in respect of a claim that does not involve a Third Party Claim, if the Indemnitee shall deliver notice of such claim (in reasonably sufficient detail to enable the Indemnifying Party does not notify the Indemnified Party within thirty (30to evaluate such claim) days from its receipt of the notice from the Indemnified Party that with reasonable promptness to the Indemnifying Party disputes Party. The failure by any Indemnitee to give such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
(b) If an Indemnified Party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such notice, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided that the failure to provide such notice notification shall not release affect the Indemnifying Party from any of its obligations under this Article VI indemnification provided hereunder except to the extent that the Indemnifying Party is shall have been actually and materially prejudiced by as a result of such failure. If the Indemnifying Party acknowledges in writing has disputed its obligation Liability with respect to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then claim the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations, such dispute shall be entitled to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so resolved by litigation, subject to the Indemnified Party within fifteen (15) days provisions of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. SimilarlySection 6.09, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent an appropriate court of the Indemnified Partycompetent jurisdiction.
Appears in 2 contracts
Sources: Formation Agreement (Reynolds American Inc), Business Combination Agreement (Rj Reynolds Tobacco Holdings Inc)
Procedures Relating to Indemnification. (a) Any party Party seeking indemnification under Section 6.01 this Article 12 (an “"Indemnified Party”") shall for itself or for any Buyer Indemnitee or Seller Indemnitee, shall, promptly after its awareness of the cause of that indemnification, give the Party or Parties from whom indemnification is being sought (an “"Indemnifying Party”") a written notice (a "Claim Notice") of any event or matter which such Indemnified Party has determined has given to or would reasonably be expected to give rise to a right of indemnification under this Agreement Article 12, stating in reasonable detail the factual basis of the claim detail, to the extent known by available, the Indemnified Partynature of the claim, the facts and circumstances with respect to the subject matter of such claim, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises; provided provided, however, that for the avoidance of doubt, the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI 12 except to the extent the Indemnifying Party is materially prejudiced by such failure. With respect to any recovery or indemnification sought by an Indemnified Party from the Indemnifying Party that does not involve a Third Party Claim, if .
(b) If the Indemnifying Party does not notify the Indemnified Party not, within thirty (30) days from its receipt of the notice from Claim Notice, deliver a Dispute Notice to the Indemnified Party that the Indemnifying Party disputes in accordance with Article 14.3(a) disputing such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
(b) . If an Indemnified the Indemnifying Party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VIhas, within thirty (30) days from its receipt of the receipt of such noticeClaim Notice, delivered a Dispute Notice to the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this in accordance with Article VI except to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claim14.3(a), then the Indemnifying Party shall be entitled to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall proceed in accordance with Article 14.3.
(c) Buyer shall discuss with Founder plans to resolve any third party claim against the Company which would result in claims under Article 12.1(a). All such claims against the Company shall be entitled resolved by the Company. When resolving such claims, the Company shall make reasonable efforts to retain mitigate its own counsel Losses in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expenseaccordance with its obligations under applicable Laws. In the event that the Indemnifying Party exercises Founder procures a valid settlement offer to the right Company from the third party claimant which complies with all applicable Laws (a "Proposed Settlement") but such offer is rejected by the Board of Directors of the Company, then to undertake the extent the final settlement amount and/or damages payable by the Company to such third party claimant exceeds the Proposed Settlement ("Excess Damages"), no Buyer Indemnitee shall be entitled to seek indemnification under this Article 12 with respect to the Excess Damages.
(d) The Parties acknowledge and agree that, if any such defense against of the Seller and Seller Shareholders has fulfilled its indemnification obligations under this Article 12 with respect to any such Third Party Claim as provided abovethird party claims, the Indemnified then no Party shall cooperate with prevent the Indemnifying Party in such defense and make available to relevant Seller and/or Seller Shareholder from seeking redress that it may have against the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified Partyrelevant third party.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Hershey Co)
Procedures Relating to Indemnification. (ai) Any party Party seeking indemnification under this Section 6.01 9.2 (an “Indemnified Party”) shall promptly give the Party from whom indemnification is being sought (an “Indemnifying Party”) notice of any matter which such Indemnified Party has determined that has given or would could reasonably be expected to give rise to a right of indemnification under this Agreement Agreement, stating in reasonable detail the factual basis nature of the claim to the extent known by the Indemnified Partyclaim, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises; provided provided, however, that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI Section 9.2 except to the extent the Indemnifying Party is materially prejudiced by such failure. With respect to any recovery or indemnification sought by an Indemnified Party from the Indemnifying Party that does not involve a Third Party Claim, if the Indemnifying Party does not notify the Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim. If the Indemnifying Party has disputed a claim for indemnification (including any Third Party Claim), the Indemnifying Party and the Indemnified Party shall proceed in good faith to negotiate a resolution to such dispute. If the Indemnifying Party and the Indemnified Party cannot resolve such dispute in thirty (30) days after delivery of the dispute notice by the Indemnifying Party, such dispute shall be resolved by arbitration pursuant to Section 10.3.
(bii) If an Indemnified Party shall receive notice of any claim Legal Proceeding, audit, demand or demand asserted by a third party assessment (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VISection 9.2, within thirty (30) days of the receipt of such notice, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided provided, however, that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI Section 9.2 except to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then the Indemnifying Party shall be entitled to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen five (155) days of the receipt of such notice from the Indemnified Party; provided that provided, however, that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the expense of the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified Party.
Appears in 2 contracts
Sources: Share Purchase Agreement (Luokung Technology Corp.), Share Purchase Agreement (Luokung Technology Corp.)
Procedures Relating to Indemnification. (a) Any party seeking indemnification under Section 6.01 (In order for an “Indemnified Party”) shall promptly give the Party from whom indemnification is being sought (an “Indemnifying Party”) notice of any matter which such Indemnified Party has determined has given or would reasonably to be expected entitled to give rise to a right of any indemnification provided for under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement in respect of, arising out of which or involving a claim or demand made by any person against the Indemnified Party (a "Third Party Claim"), such right Indemnified Party must notify the indemnifying party in writing, and in reasonable detail, of indemnification is claimed or arisesthe Third Party Claim within 10 business days after receipt by such Indemnified Party of written notice of the Third Party Claim; provided provided, however, that the failure to provide give such notice notification shall not release affect the Indemnifying Party from any of its obligations under this Article VI indemnification provided hereunder except to the extent the Indemnifying Party is materially indemnifying party shall have been actually prejudiced by as a result of such failure. With respect to failure (except that the indemnifying party shall not be liable for any recovery or indemnification sought by an Indemnified Party from expenses incurred during the Indemnifying Party that does not involve a Third Party Claim, if the Indemnifying Party does not notify period in which the Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes failed to give such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claimnotice).
(b) If a Third Party Claim is made against an Indemnified Party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such noticeParty, the Indemnified Party indemnifying party shall give be entitled to participate in the Indemnifying Party notice of such Third Party Claim; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party defense thereof and, if it so chooses and acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses therefor, to assume the defense thereof with counsel selected by the indemnifying party; provided that may result from such counsel is not reasonably objected to by the Indemnified Party. Should the indemnifying party so elect to assume the defense of a Third Party Claim, then the Indemnifying Party indemnifying party shall not be entitled to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so liable to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of for legal expenses subsequently incurred by the Indemnified Party in its sole and absolute discretion for connection with the same counsel to represent both defense thereof. If the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any indemnifying party assumes such defense against any such Third Party Claim as provided abovedefense, the Indemnified Party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party), at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense.
(c) If the indemnifying party so elects to assume the defense of any Third Party Claim, all of the indemnified parties shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information indemnifying party in the Indemnified Party’s possession defense or under prosecution thereof. Whether or not the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting indemnifying party shall have assumed the defense against any such of a Third Party Claim, the Indemnifying Indemnified Party shall cooperate not admit any liability with the Indemnified Party in such defense and make available to the Indemnified Partyrespect to, at the Indemnifying Party’s expenseor settle, all such witnessescompromise or discharge, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the indemnifying party's prior written consent (which consent shall not be unreasonably withheld). If the indemnifying party shall have assumed the defense of a Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of a Third Party Claim which the indemnifying party may recommend and which by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim and which releases the Indemnified PartyParty completely in connection with such Third Party Claim.
Appears in 2 contracts
Sources: Asset and Land Purchase Agreement (Starwood Hotels & Resorts), Asset and Land Purchase Agreement (Sun International Hotels LTD)
Procedures Relating to Indemnification. (a) Any party seeking In order to make a claim for indemnification under Section 6.01 (an “Indemnified Party”) shall promptly give the Party from whom indemnification is being sought (an “Indemnifying Party”) notice of any matter which such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations for under this Article VI X in respect of, arising out of or involving a Third-Party Claim, such indemnified party must notify the indemnifying party in writing of the Third-Party Claim (describing the claim, the amount thereof (if known and quantifiable) and the basis thereof) reasonably promptly after receipt by such indemnified party of written notice of the 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 is materially indemnifying party has been actually prejudiced by as a result of such failure. With respect failure and shall not relieve the indemnifying party from any other obligation or Liability that it may have to any recovery or indemnification sought indemnified party otherwise than under this Article X. Subject to the proviso in the immediately preceding sentence, the indemnified party will deliver to the indemnifying party, as promptly as reasonably practicable, copies of all notices and documents (including court papers) received by an Indemnified Party from the Indemnifying Party that does not involve a Third indemnified party relating to the Third-Party Claim, if the Indemnifying Party does not notify the Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
(b) If a Third-Party Claim is made against an Indemnified Party shall receive notice of any claim or demand asserted by a third indemnified party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of and the receipt of such notice, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party indemnifying party acknowledges in writing its obligation to indemnify the Indemnified Party indemnified party hereunder against any Losses that may result from such Third Third-Party Claim, then the Indemnifying Party indemnifying party shall be entitled to assume and control the defense of such Third Third-Party Claim at its expense and through counsel of its choice selected by the indemnifying party if it gives notice of its intention to do so to the Indemnified Party indemnified party within fifteen twenty (1520) days of the receipt of such notice from the Indemnified Partyindemnified party of such Third-Party Claim; provided that provided, however, that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate (in the judgment opinion of the Indemnified Party in its sole and absolute discretion outside counsel of the indemnified party) for the same counsel to represent both the Indemnified Party indemnified party and the Indemnifying Partyindemnifying party, then the Indemnified Party indemnified party shall be entitled to retain its own counsel (not to exceed one law firm or attorney, subject to approval by the indemnifying party), and subject to the other limitations set forth in each this Article X, the indemnifying party shall pay the reasonable fees and expenses of such counsel. The indemnifying party shall not be entitled to assume or continue control of the defense of any Third-Party Claim if (i) the Third-Party Claim is brought by, or on behalf of, a Governmental Authority having jurisdiction for which over the Indemnified indemnified party, (ii) the Third-Party determines counsel is requiredClaim seeks an injunction, at specific performance or similar equitable relief against any indemnified party or (iii) the Indemnifying Party’s expenseindemnifying party has failed to assume the defense of the Third-Party Claim. In the event that the Indemnifying Party indemnifying party exercises the right to undertake any such defense against any such Third Third-Party Claim as provided above, the Indemnified Party indemnified party shall cooperate with the Indemnifying Party indemnifying party in such defense and make available to the Indemnifying Partyindemnifying party, at the Indemnifying Partyindemnifying party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Partyindemnified party’s possession or under the Indemnified Partyindemnified party’s control relating thereto as is reasonably required by the Indemnifying Partyindemnifying party. Similarly, in the event the Indemnified Party indemnified party is, directly or indirectly, conducting the defense against any such Third Third-Party Claim, the Indemnifying Party indemnifying party shall cooperate with the Indemnified Party indemnified party in such defense and make available to the Indemnified Partyindemnified party, at the Indemnifying Partyindemnifying party’s expense, all such witnesses, records, materials and information in the Indemnifying Partyindemnifying party’s possession or under the Indemnifying Partyindemnifying party’s control relating thereto as is reasonably required by the Indemnified Partyindemnified party. No such Third Third-Party Claim may be settled by the Indemnifying Party indemnified party without the prior written consent of the Indemnified Partyindemnifying party (such consent not to be unreasonably withheld, conditioned or delayed). No such Third-Party Claim may be settled by the indemnifying party without the prior written consent of the indemnified party (such consent not to be unreasonably withheld, conditioned or delayed) unless the settlement, by its terms, (A) obligates the indemnifying party to pay the full amount of Losses in connection with such Third-Party Claim, (B) includes a full and unconditional release, reasonably satisfactory to the indemnified party, of the indemnified party from all Liability in connection with such Third-Party Claim, (C) does not impose any obligation (whether monetary or otherwise) against the indemnified party, and (D) does not include a finding or admission of any Liability or violation of Applicable Law.
(c) If any indemnified party desires to assert any claim for indemnification provided for under this Article X other than a claim in respect of, arising out of or involving a Third-Party Claim, such indemnified party shall notify the indemnifying party in writing, and in reasonable detail (taking into account the information then available to such indemnified party, describing the claim, the amount thereof (if known and quantifiable) and the basis thereof), of such claim promptly after becoming aware of the existence of such claim, and in any event, prior to the expiration of the applicable survival period.
Appears in 2 contracts
Sources: Asset Purchase Agreement (New York Community Bancorp, Inc.), Asset Purchase Agreement (Mr. Cooper Group Inc.)
Procedures Relating to Indemnification. (ai) Any party seeking indemnification under Section 6.01 (an “Indemnified Party”) The Purchaser shall promptly give the Party from whom indemnification is being sought (an “Indemnifying Party”) Seller notice of any matter which such Indemnified Party the Purchaser has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis nature of the claim to the extent known by the Indemnified Partyclaim, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises; provided provided, however, that the failure to provide such notice shall not release the Indemnifying Party Seller from any of its obligations under this Article VI Section 9.2 except to the extent the Indemnifying Party Seller is materially prejudiced by such failure. With respect to any recovery or indemnification sought by an Indemnified Party the Purchaser from the Indemnifying Party Seller that does not involve a Third Party Claim, if the Indemnifying Party Seller does not notify the Indemnified Party Purchaser within thirty ninety (3090) days from its receipt of the notice from the Indemnified Party Purchaser that the Indemnifying Party Seller disputes such claim, the Indemnifying Party Seller shall be deemed to have accepted and agreed with such claim. If the Seller has disputed a claim for indemnification (including any Third Party Claim), the Seller and the Purchaser shall proceed in good faith to negotiate a resolution to such dispute. If the Seller and the Purchaser cannot resolve such dispute in one hundred and eighty (180) days after delivery of the dispute notice by the Seller, such dispute shall be resolved by arbitration pursuant to Section 10.3.
(bii) If an Indemnified Party the Purchaser shall receive notice of any claim Legal Proceeding, audit, demand or demand asserted by a third party assessment (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VISection 9.2, within thirty (30) days of the receipt of such notice, the Indemnified Party Purchaser shall give the Indemnifying Party Seller notice of such Third Party Claim; provided provided, however, that the failure to provide such notice shall not release the Indemnifying Party Seller from any of its obligations under this Article VI Section 9.2 except to the extent that the Indemnifying Party Seller is materially prejudiced by such failure. If the Indemnifying Party Seller acknowledges in writing its obligation to indemnify the Indemnified Party Purchaser hereunder against any Losses that may result from such Third Party Claim, then the Indemnifying Party Seller shall be entitled to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party Purchaser within fifteen ninety (1590) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying PartyPurchaser. Similarly, in the event the Indemnified Party Purchaser is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party Seller shall cooperate with the Indemnified Party Purchaser in such defense and make available to the Indemnified PartyPurchaser, at the Indemnifying PartySeller’s expense, all such witnesses, records, materials and information in the Indemnifying PartySeller’s possession or under the Indemnifying PartySeller’s control relating thereto as is reasonably required by the Indemnified Party. No Purchaser, if such Third Party Claim may be settled by arises out of or in connection with any reason incurred before the Indemnifying Party without the prior written consent date of the Indemnified Partythis Agreement.
Appears in 2 contracts
Sources: Share Purchase Agreement (Lufax Holding LTD), Share Purchase Agreement
Procedures Relating to Indemnification. (a) Any A party seeking entitled to indemnification under Section 6.01 (hereunder shall herein be referred to as an “Indemnified Party”) .” A party obligated to indemnify an Indemnified Party hereunder shall promptly give the Party from whom indemnification is being sought (herein be referred to as an “Indemnifying Party”) notice of any matter which such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement stating in .” As soon as is reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent the Indemnifying Party is materially prejudiced by such failure. With respect to any recovery or indemnification sought by after an Indemnified Party from the Indemnifying Party that does not involve a Third Party Claim, if the Indemnifying Party does not notify the Indemnified Party within thirty either (30i) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
(b) If an Indemnified Party shall receive receives notice of any claim or demand asserted the commencement of any action by a any third party which such Indemnified Party reasonably believes may give rise to a claim for indemnification from an Indemnifying Party hereunder (each, a “Third Party Claim”) against it or (ii) sustains any Loss not involving a Third Party Claim or action which such Indemnified Party reasonably believes may give rise to a claim for Loss indemnification from an Indemnifying Party hereunder, such Indemnified Party shall, if a claim in respect thereof is to be made against an Indemnifying Party under this Article VIVIII notify such Indemnifying Party in writing of such claim, within thirty (30) days action or Loss, as the case may be; provided, however, that failure to notify Indemnifying Party shall not relieve Indemnifying Party of its indemnity obligation, except to the extent Indemnifying Party is actually prejudiced in its defense of the receipt action by such failure. Any such notification must be in writing and must state in reasonable detail the nature and basis of such noticethe claim, action or Loss, to the Indemnified extent known. Except as provided in this Section 8.6, Indemnifying Party shall give have the Indemnifying Party notice of right to contest, defend, litigate or settle any such Third Party ClaimClaim which involves solely monetary damages; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party acknowledges in writing its obligation to indemnify shall have notified the Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then the Indemnifying Party shall be entitled to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice if it gives notice in writing of its intention to do so to the Indemnified Party within fifteen (15) 15 days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for having given notice of the same counsel Third Party Claim to represent both the Indemnified Party and the Indemnifying Party; provided, then that the Indemnifying Party shall diligently contest the Third Party Claim. The Indemnified Party shall have the right to participate in, and to be represented by counsel (at its own expense) in any such contest, defense, litigation or settlement conducted by the Indemnifying Party; provided, that the Indemnified Party shall be entitled to retain reimbursement thereafter if the Indemnifying Party shall lose its own counsel in each jurisdiction for which right to contest, defend, litigate and settle the Third Party Claim or if representation of the Indemnifying Party and the Indemnified Party determines by the same counsel is requiredwould, at in the reasonable opinion of such counsel, constitute a conflict of interest that cannot be waived under applicable standards of professional conduct.
(b) The Indemnifying Party’s expense. In , if it shall have assumed the event that defense of any Third Party Claim as provided in this Agreement, shall not consent to a settlement of, or the Indemnifying Party exercises the right to undertake entry of any such defense against judgment arising from, any such Third Party Claim as provided above, without the prior written consent of the Indemnified Party (which consent shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Partynot be unreasonably withheld, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession conditioned or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Partydelayed). Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the The Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Partynot, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified Party, enter into any compromise or settlement which commits the Indemnified Party to take, or to forbear to take, any action or which does not provide for a complete release by such third party of the Indemnified Party. The Indemnified Party shall have the sole and exclusive right to settle any Third Party Claim, on such terms and conditions as it deems reasonably appropriate, to the extent such Third Party Claim involves equitable or other non-monetary relief. All expenses (including attorneys’ fees) incurred by the Indemnifying Party in connection with the foregoing shall be paid by the Indemnifying Party.
(c) If an Indemnified Party is entitled to indemnification against a Third Party Claim, and the Indemnifying Party fails to accept a tender of, or assume the defense of, a Third Party Claim pursuant to this Section 8.6 the Indemnifying Party shall not be entitled, and shall lose its right, to contest, defend, litigate and settle such a Third Party Claim, and the Indemnified Party shall have the right, without prejudice to its right of indemnification hereunder, in its discretion exercised in good faith, to contest, defend and litigate such Third Party Claim, and may settle such Third Party Claim either before or after the initiation of litigation, at such time and upon such terms as the Indemnified Party deems fair and reasonable, provided that at least ten (10) days prior to any such settlement, written notice of its intention to settle is given to the Indemnifying Party.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (Humbl, Inc.), Membership Interest Purchase Agreement (Humbl, Inc.)
Procedures Relating to Indemnification. (a) Any party seeking indemnification under Section 6.01 In order for a Purchaser Indemnified Party or a Seller Indemnified Party (an in each case, as applicable, the “Indemnified Party”) shall promptly give to be entitled to any indemnification pursuant to this Article X in respect of, arising out of or involving a claim or demand made by any Person against the Indemnified Party (a “Third Party Claim”), such Indemnified Party must notify the Person from whom which such Indemnified Party is claiming indemnification is being sought (an the “Indemnifying Party”) notice in writing of (and in reasonable detail regarding) the Third Party Claim promptly, and in any matter which event within 10 Business Days, after receipt by such Indemnified Party has determined has given or would reasonably be expected of notice of the Third Party Claim; provided, however, that failure to give rise to a right of such notification shall not affect the indemnification provided under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent the Indemnifying Party is materially shall have been actually prejudiced by as a result of such failure. With respect to any recovery or indemnification sought by an Thereafter, the Indemnified Party from shall deliver to the Indemnifying Party promptly, and in any event within 10 Business Days, after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim.
(b) If a Third Party Claim is made against an Indemnified Party, the Indemnifying Party shall be entitled to participate in the defense thereof and, if it so chooses, to assume and control the defense thereof with counsel selected by the Indemnifying Party. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party shall not be liable to the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof, except as provided below. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right to participate in the defense thereof and to employ at its own expense counsel not reasonably objected to by the Indemnifying Party separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense and shall be empowered to make any settlement with respect to such Third Party Claim, subject to the terms of this Section 10.05(b). The Indemnifying Party shall be liable for the reasonable fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof. If the Indemnifying Party chooses to defend or prosecute any Third Party Claim, all the Parties hereto shall cooperate and shall cause their Affiliates to cooperate in the defense or prosecution (or settlement) thereof. Such cooperation shall include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records and information that are reasonably relevant to such Third Party Claim (subject to the Indemnifying Party’s agreement to appropriate confidentiality undertakings), and making employees available on any basis reasonably requested by the Indemnifying Party to provide additional information and explanation of any material provided hereunder or otherwise relating to the Third Party Claim. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld) unless the Indemnified Party irrevocably waives its right to indemnification under this Article X with respect to such Third Party Claim. If the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim that the Indemnifying Party may recommend and that by its terms (or pursuant to a binding commitment of the Indemnifying Party) obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim; provided, however, that such settlement, compromise or discharge (i) requires only payment of monetary damages by the Indemnified Party and (ii) provides for an unconditional release of the Indemnified Party in respect of such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of counsel incurred by the Indemnified Party in defending such Third Party Claim) if: (x) the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages; (y) the Indemnifying Party is also a party to such Third Party Claim, and in the opinion of the Indemnified Party’s outside counsel, a conflict exists between the Indemnifying Party and the Indemnified Party (or there are defenses available to the Indemnified Party that are unavailable to the Indemnifying Party); or (z) the Indemnified Party is the only Person with actual or potential liability with respect to the Third Party Claim and the Indemnified Party irrevocably waives its right to indemnification under this Article X with respect to such Third Party Claim. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages.
(c) In the event any Indemnified Party should have an indemnification claim against any Indemnifying Party under this Article X that does not involve a Third Party Claim, if the Indemnifying Party does not notify the Claim being asserted against or sought to be collected from such Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
(b) If an Indemnified Party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such noticeParty, the Indemnified Party shall give deliver notice of such claim with reasonable promptness to the Indemnifying Party. The failure by any Indemnified Party to so notify the Indemnifying Party notice of such Third Party Claim; provided that the failure to provide such notice shall not release relieve the Indemnifying Party from any of its obligations under this Article VI liability that it may have to such Indemnified Party, except to the extent that the Indemnifying Party is materially has been actually prejudiced by such failure. If the Indemnifying Party acknowledges in writing disputes its obligation liability with respect to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claimclaim, then the Indemnifying Party shall be entitled to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved within 60 days through negotiations, such dispute shall be entitled resolved by litigation in an appropriate court of competent jurisdiction. The determination of such court shall be subject to retain its own counsel the exclusive jurisdiction and other provisions set forth in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party Article II of Annex 1 hereto.
(d) Seller and Purchaser shall cooperate with each other with respect to resolving any claim or liability with respect to which any Party is obligated to indemnify the Indemnifying other Party in such defense and make available hereunder or an Affiliate thereof, including by making commercially reasonable efforts to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession mitigate or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against resolve any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession claim or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified Partyliability.
Appears in 2 contracts
Sources: Master Asset Purchase Agreement, Master Asset Purchase Agreement (Synnex Corp)
Procedures Relating to Indemnification. (a) Any 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 seeking indemnification under Section 6.01 (an “Indemnified Party”) shall promptly give the Party from whom indemnification is being sought (an “Indemnifying Party”) notice of any matter which such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim (or an Affiliate thereof) as to the extent known by the Indemnified Party, and containing a reference which an Indemnifying Party may be obligated to the provisions of provide indemnification pursuant to this Agreement in respect of which (a "Third Party Claim"), such right of indemnification is claimed or arises; provided that the failure to provide such notice shall not release Indemnitee will notify the Indemnifying Party from in writing, and in reasonable detail, of the Third Party Claim reasonably promptly (and in any event within 20 business days) after becoming aware of its obligations under this Article VI 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 is materially shall have been actually prejudiced by as a result of such failure. With respect to any recovery or indemnification sought by an Indemnified Party from failure (except that the Indemnifying Party will not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice). Thereafter, the Indemnitee will deliver to the Indemnifying Party, promptly after the Indemnitee's receipt thereof, copies of all notices and documents (including, without limitation, court papers) received or transmitted by the Indemnitee relating to the Third Party Claim.
(b) If a Third Party Claim is made against an Indemnitee, the Indemnifying Party will be entitled to participate in or to assume the defense thereof (in either case, 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 the Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or if the Indemnifying Party shall have assumed responsibility for such claim with any reservations or exceptions, such Indemnitee will have the right to employ separate counsel reasonably satisfactory to the Indemnifying Party to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel for all Indemnitees similarly situated) shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee will have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party will control such defense. The Indemnifying Party will 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 (other than during any period in which the Indemnitee shall have failed to give notice of the Third Party Claim as provided above). 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, 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, the parties hereto will cooperate in the defense thereof (such cooperation to be at the expense, including, without limitation, reasonable legal fees and expenses, of the Indemnifying Party), which cooperation shall include the retention in accordance with this Agreement and (upon the Indemnifying Party's request) the provision to the Indemnifying Party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(c) 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 (which consent will not be unreasonably withheld); provided, that if the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of Indemnifiable Losses in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee completely from all Liability in connection with such Third Party Claim; provided, however, that the Indemnitee may refuse to agree to any such settlement, compromise or discharge (x) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or (y) that, in the reasonable opinion of the Indemnitee, would otherwise materially adversely affect the Indemnitee. Whether or not the Indemnifying Party shall have assumed the defense of a Third Party Claim, the Indemnitee 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 will not be unreasonably withheld).
(d) Any claim on account of Indemnifiable Losses that does not involve a Third Party Claim, if Claim will be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party does not from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
(b) If an Indemnified Party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such notice, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided that the failure to provide such notice shall will not release relieve the Indemnifying Party from any of its obligations liability that it may have to such Indemnitee under this Article VI Agreement, except to the extent that the Indemnifying Party is materially shall have been actually prejudiced by such failure. Any notice pursuant to this Section 4.5(d) will contain a statement, in prominent and conspicuous type, that 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 the second notice of such claim, the claim shall be conclusively deemed a liability of the Indemnifying Party. If the Indemnitee has provided the Indemnifying Party two such notices not less than 30 days apart and the Indemnifying Party does not notify the Indemnitee prior to the expiration of a 30-calendar-day period following its receipt of the second such notice that the Indemnifying Party disputes its liability to the Indemnitee under this Agreement, such claim specified by the Indemnitee in such notice will be conclusively deemed a liability of the Indemnifying Party under this Agreement and the Indemnifying Party will 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 acknowledges in writing has timely disputed its obligation liability with respect to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claimclaim, then the Indemnifying Party shall be entitled to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party and the Indemnitee will proceed in good faith to negotiate a resolution of such defense and make available dispute and, if not resolved through negotiations by the 120th day after notice of such claim was given to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials Party and information in the Indemnified Party’s possession Indemnitee will be free to pursue such remedies as may be available to such parties under this Agreement or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in applicable law.
(e) In the event the Indemnified of payment in full by an Indemnifying Party is, directly or indirectly, conducting the defense against to any such Indemnitee in connection with any Third Party Claim, the such Indemnifying Party will be subrogated to and shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information stand in the Indemnifying Party’s possession place of such Indemnitee as to any events or under the Indemnifying Party’s control circumstances in respect of which such Indemnitee may have any right or claim relating thereto as is reasonably required by the Indemnified Party. No to such Third Party Claim may be settled by the against any claimant or plaintiff asserting such Third Party Claim or against any other Person. Such Indemnitee will cooperate with such Indemnifying Party without in a reasonable manner, and at the prior written consent cost and expense of the Indemnified such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 2 contracts
Sources: Distribution Agreement (Huttig Building Products Inc), Distribution Agreement (Huttig Building Products Inc)
Procedures Relating to Indemnification. (a) Any In order for a party seeking indemnification under Section 6.01 (an the “Indemnified Party”) shall promptly give to be entitled to any indemnification provided for under this Agreement in respect of a claim or demand made by any Person against the Indemnified Party from whom indemnification is being sought (an a “Third-Party Claim”), such Indemnified Party must notify the indemnifying party (the “Indemnifying Party”) notice in writing, and in reasonable detail, of any matter which the Third-Party Claim as promptly as reasonably possible after receipt by such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis notice of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arisesThird-Party Claim; provided that the failure to provide give such notice notification on a timely basis shall not release affect the Indemnifying Party from any of its obligations under this Article VI indemnification provided hereunder except to the extent the Indemnifying Party is materially shall have been actually prejudiced by as a result of such failure. With respect to any recovery or indemnification sought by an Thereafter, the Indemnified Party from shall promptly deliver to the Indemnifying Party that does not involve a Third 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; provided that failure to deliver such notices and documents 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; and, provided further that if the Indemnifying Party does not notify shall have denied its indemnification obligation hereunder, the Indemnified Party within thirty (30) days from its receipt of the notice from shall have no obligation to deliver such notices and documents promptly; provided, however, that the Indemnified Party that shall deliver any notices or documents as reasonably requested by the Indemnifying Party disputes such claimthereafter.
(b) If a Third-Party Claim is made against an Indemnified Party, the Indemnifying Party shall be deemed entitled to have accepted and agreed with such claim.
(b) If an Indemnified Party shall receive notice of any claim or demand asserted by a third party (eachparticipate in the defense thereof and, a “Third Party Claim”) against if it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such notice, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party ClaimParty, then the Indemnifying Party shall be entitled to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so subject to the Indemnified Party limitations on any claims contained in this Article IX, within fifteen thirty (1530) days of the its receipt of such notice from the Indemnified Party of such Third-Party Claim, the Indemnifying Party may assume the defense thereof with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in . To so assume the judgment of defense thereof, the Indemnifying Party must notify the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event writing within such thirty (30) days that the Indemnifying Party exercises will indemnify the right Indemnified Party with respect to undertake any such defense against any such Third Third-Party Claim as provided above, in this Article IX subject to the Indemnified limitations on any claims contained in this Article IX. The Indemnifying Party shall cooperate with lose its right to defend or litigate the Third-Party Claim if it fails to diligently defend or litigate such Third-Party Claim. Should an Indemnifying Party so elect to assume the defense of a Third-Party Claim, and so long as the Indemnifying Party in has not lost its right to defend or litigate such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Third-Party Claim, the Indemnifying Party shall cooperate with not be liable to the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right to participate in the defense thereof and make available to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood, however, that the Indemnifying Party shall control such defense, and in its discretion exercised in reasonable, good faith and upon advice of counsel, may settle such Third-Party Claim either before or after the initiation of litigation at such time and upon such terms as it deems fair and reasonable subject to the written consent of the Indemnified Party, at which consent shall not be unreasonably witheld, conditioned or delayed; provided, that the Indemnifed Party may deny, condition, delay or otherwise withhold its consent in the Indemnified Party’s sole and absolute discretion, if such proposed settlement (i) does not include as an unconditional term thereof the giving by the Person or Persons asserting such Third-Party Claim to such Indemnified Party of an unconditional release from all Liability with respect to such Third-Party Claim or consent to entry of any judgment, (ii) requires the Indemnified Party to take, or refrain from taking, any action, or pay any amounts without such Indemnified Party’s express prior written consent, (iii) imposes equitable remedies or any obligation on the Indemnified Parties, or (iv) involves a finding or admission of wrongdoing by the Indemnified Party and (A) if the Indemnified Party is a Buyer Indemnitee, then by Buyer or any Affiliate thereof, or (B) if the Indemnified Party is a Seller Indemnitee, then by Seller or any Affiliate thereof. Notwithstanding any provision in this Agreement to the contrary, if the Indemnifying Party assumes the defense of a Third-Party Claim, all attorneys’ fees and other expenses incurred by the Indemnifying Party in so defending such Third Party Claim shall be paid by the Indemnifying Party. If the Indemnifying Party chooses to defend any Third-Party Claim, all the parties hereto shall cooperate in the defense or prosecution of such Third-Party Claim. Such cooperation shall include the retention and (upon the Indemnifying Party’s expense, all such witnesses, records, materials request) the provision to the Indemnifying Party of records and information in which are reasonably relevant to such Third-Party Claim, and making employees and other representatives and advisors available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not Seller shall have assumed the Indemnifying Party’s possession defense of a Third-Party Claim, neither Buyer nor any of its Affiliates shall admit any liability with respect to, or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such settle, compromise or discharge, any Third Party Claim may be settled by the Indemnifying Party without the prior written consent of Seller, which consent shall not be unreasonably withheld, conditioned or delayed. If there shall be any conflicts between this Section 9.05(b) and Section 9.09(g) (relating to Tax Claims), the provisions of Section 9.09(g) shall control with respect to Tax Claims and this Section 9.05(b) shall not apply to any Covered Tax.
(c) Notwithstanding anything contained in this Section 9.05 or in Section 9.09 to the contrary, Seller, as the Indemnifying Party, shall not be entitled to assume any defense of a Third-Party Claim or Tax Claim hereunder unless (i) the Indemnified Party and Seller reasonably and in good faith determine that, based upon the totality of the facts and circumstances in which such Third-Party Claim or Tax Claim has been made, the balance of the Indemnity Escrow Amount in the Indemnity Escrow Account (taking into account all pending indemnification claims) is sufficient to satisfy the Indemnified Party’s Losses associated with respect to such Third-Party Claim or Tax Claim and (ii) the Third-Party Claim or Tax Claim involves only money damages and does not seek an injunction or other equitable relief. In addition, an Indemnifying Party shall not be entitled to assume or continue any defense of a Third-Party Claim or Tax Claim hereunder if (A) the claim for indemnification is with respect to a criminal proceeding, action, indictment, allegation or investigation or (B) a conflict of interest exists or develops between the Indemnifying Party and the Indemnified Party with respect to the Third-Party Claim or Tax Claim.
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Thermon Holding Corp.)
Procedures Relating to Indemnification. (a) Any party In the event that either a Purchaser Indemnified Party or a Seller Indemnified Party desires to assert a demand, claim or circumstance that, immediately or with the lapse of time, could give rise to a claim (a “Claim”) for indemnification pursuant to this Article X, such Person seeking indemnification under Section 6.01 (an the “Indemnified PartyIndemnitee”) shall shall, as promptly give as is reasonably practicable after becoming aware of the demand, claim or circumstance, deliver written notice (such notice, a “Claims Notice”) to the Party from whom indemnification is being sought (an the “Indemnifying PartyIndemnitor”) notice of any matter which such Indemnified Party has determined has given ); provided, however, that, except as otherwise provided in Section 10.01 or would reasonably be expected Section 10.06(a), a failure to give rise such notice shall not affect the Indemnitee’s right to a right of indemnification under this Agreement stating hereunder except to the extent that the Indemnitor is actually prejudiced thereby. The Claims Notice shall describe the Claim in reasonable detail and shall indicate the factual basis amount (estimated, if necessary) and nature of the claim to Damages, and the extent known method of computation thereof, that has been or may be suffered by the Indemnified Party, Indemnitee and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed sought or arises.
(b) Promptly after receipt from any third-party by an Indemnitee of a notice of any demand, claim or circumstance that, immediately or with the lapse of time, could give rise to a claim or the commencement (or threatened commencement) of any Action or investigation (a “Third-Party Claim”) that may result in Damages with respect to which the Indemnitee would be entitled to indemnification pursuant to this Article X, the Indemnitee shall deliver a Claims Notice with respect thereto together with copies of any notices or other documents (including any court papers) received by the Indemnitee relating to such Third-Party Claim; provided, however, that, except as otherwise provided that the in Section 10.01 or Section 10.06(a), a failure to provide such notice shall not release affect the Indemnifying Party from any of its obligations under this Article VI except Indemnitee’s right to the extent the Indemnifying Party is materially prejudiced by such failure. With respect to any recovery or indemnification sought by an Indemnified Party from the Indemnifying Party that does not involve a Third Party Claim, if the Indemnifying Party does not notify the Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
(b) If an Indemnified Party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such notice, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI hereunder except to the extent that the Indemnifying Indemnitor is actually prejudiced thereby (except that the Indemnitor shall not be liable for any expenses incurred during the period in which the Indemnitee failed to provide such notice).
(c) Unless the Indemnitor is also a party to such Third-Party is materially prejudiced by such failure. If Claim and the Indemnifying Party acknowledges Indemnitee determines in writing good faith after conferring with its obligation to indemnify outside counsel that joint representation would be inappropriate, and except as provided below, the Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then the Indemnifying Party Indemnitor shall be entitled to settle or assume and control the defense of any Third-Party Claim at its own expense and by its own counsel. If the Indemnitor elects to settle or defend such Third-Party Claim, it shall notify the Indemnitee of its intent to do so and shall promptly provide written notice of all material developments in connection with the defense of such Third-Party Claim, and the Indemnitee shall cooperate in the settlement of, or defense against, such Third-Party Claim including, if appropriate, making any reasonable counterclaim against such third-party or any reasonable cross claim or third-party claim against any Person related to such Third-Party Claim. Such cooperation shall also include (i) the retention of records and information that are reasonably relevant to such Third-Party Claim, (ii) promptly supplying the Indemnitor with copies of all papers, documents and evidence in the Indemnitee's possession or control and such other information within the Indemnitee's knowledge pertinent to such Third-Party Claims, (iii) making employees available on a mutually-convenient basis to provide additional information and explanation of any information or materials provided hereunder and producing at the appropriate place or places, at reasonable times, such witnesses under the Indemnitee's control as may reasonably be requested by the Indemnitor or its Representatives and (iv) promptly providing written notice of all material developments in connection with any such Third-Party Claims. The Indemnitee shall have the right to employ, at its own expense, separate counsel in the defense of any such Third-Party Claim and participate in the defense thereof (it being understood that the Indemnitor shall control such defense). The Indemnitor shall not settle or compromise any Third-Party Claim without the Indemnitee’s prior written consent (which shall not be unreasonably conditioned, withheld or delayed), unless such settlement or compromise (A) involves no payment of money by the Indemnitee, (B) includes a complete and unconditional release of the Indemnitee in respect of such Third-Party Claim, (C) does not subject the Indemnitee to any injunctive relief or other equitable remedy or any limitation on the future operation of Indemnitee’s business and (D) there is no finding or admission of any violation of Law and does not include a statement or admission of fault or culpability by or on behalf of any Indemnitee. Notwithstanding anything to the contrary in this section, the Indemnitor shall not be entitled to assume the defense of any Third-Party Claim (and shall pay the reasonable out-of-pocket fees and expenses of outside counsel incurred by the Indemnitee in defending such Third-Party Claim) if the Third-Party Claim is brought by any Governmental Authority or seeks an injunction or other equitable relief or any other relief other than money damages against the Indemnitee that the Indemnitee reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages.
(d) If the Indemnitor, within a reasonable time after its receipt of any Claims Notice in respect of a Third-Party Claim, fails to notify the Indemnitee of its intent to settle or assume and control the defense of such Third Third-Party Claim at its expense and through counsel of its choice if it gives Claim, the Indemnitee shall (upon further notice of its intention to do so to the Indemnified Party within fifteen (15Indemnitor) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises have the right to undertake any the defense of such defense against any such Third Third-Party Claim as provided above(without impairing or otherwise affecting its rights to obtain indemnification pursuant to this Article X), the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available subject to the Indemnifying Party, at right of the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting Indemnitor to assume the defense against of such Third-Party Claim at any such Third time prior to the final settlement or compromise thereof. Whether or not the Indemnitor assumes the defense of a Third-Party Claim, the Indemnifying Party Indemnitee shall cooperate with the Indemnified Party in such defense and make available not consent to the Indemnified Partyentry of any judgment or admit any liability with respect to, at the Indemnifying Party’s expenseor settle, all compromise or discharge, such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Third-Party Claim may be settled by the Indemnifying Party without the Indemnitor’s prior written consent of the Indemnified Party(which consent shall not be unreasonably conditioned, withheld or delayed).
Appears in 2 contracts
Sources: Asset Purchase Agreement (Wendy's Co), Asset Purchase Agreement (NPC Restaurant Holdings, LLC)
Procedures Relating to Indemnification. (a) Any party seeking indemnification under Section 6.01 (an “Indemnified Party”) shall promptly give the Party from whom indemnification is being sought (an “Indemnifying Party”) notice of In order -------------------------------------- for any matter which such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of be entitled to any indemnification provided for under this Agreement in respect of, arising out of which such right of indemnification is claimed or arises; provided that resulting from a claim made by any Person against the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent the Indemnifying Party is materially prejudiced by such failure. With respect to any recovery or indemnification sought by an Indemnified Party from the Indemnifying Party that does not involve (a "Third Party Claim"), such ----------------- Indemnified Party must notify Global in writing (and in reasonable detail) of the Third Party Claim promptly (but in no event more than 30 days) following receipt by such Indemnified Party of notice of the Third Party Claim. The failure to so notify shall not relieve Global of any liability they may have to such Indemnified Party if the Indemnifying Party such failure does not notify materially prejudice Global. Thereafter, the Indemnified Party within thirty shall deliver to Global, promptly following the Indemnified Party's receipt thereof, copies of all notices and documents (30including court papers) days from its receipt of the notice from received by the Indemnified Party that relating to the Indemnifying Third Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claimClaim.
(b) If a Third Party Claim is made against an Indemnified Party Party, Global shall receive notice be entitled to participate in the defense thereof and, if it so chooses, to assume the defense thereof at Global's expense with counsel selected by Global; provided, however, that such counsel is not reasonably objected to by -------- ------- the Indemnified Party. Should Global so elect to assume the defense of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise , Global shall not be liable to a claim the Indemnified Party for Loss under this Article VI, within thirty (30) days of any legal expenses subsequently incurred by the receipt of Indemnified Party in connection with the defense thereof. If Global assumes such noticedefense, the Indemnified Party shall give have the Indemnifying Party notice of such Third Party Claim; provided that the failure right to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party acknowledges participate in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then the Indemnifying Party shall be entitled to assume and control the defense of such Third Party Claim thereof and to employ counsel (not reasonably objected to by Global), at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice own expense, separate from the Indemnified Party; provided counsel employed by Global (it being understood that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Global shall control such defense). The Indemnified Party shall be entitled to retain its own reimbursement for all costs, fees and expenses (including the fees and expenses of counsel employed by the Indemnified Party) for any period during which Global has not assumed the defense thereof (other than during any period in each jurisdiction for which the Indemnified Party determines counsel is required, at shall have failed to give notice of the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above). If Global chooses to defend or prosecute a Third Party Claim, all the Indemnified Party Parties shall cooperate with fully in the Indemnifying Party in such defense or prosecution thereof. Such cooperation shall include the retention and make available (upon Global's request) the provision to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials Global of records and information in the Indemnified Party’s possession that are reasonably requested by Global or under the Indemnified Party’s control relating thereto as is that are reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any relevant to such Third Party Claim, and making employees available on a mutually convenient basis during normal business hours to provide additional information and explanation of any material provided hereunder. Whether or not Global assumes the Indemnifying defense of a Third Party shall cooperate with Claim, (x) the Indemnified Party in such defense and make available to the Indemnified Partyshall not admit any liability with respect to, at the Indemnifying Party’s expenseor settle, all such witnesses, records, materials and information in the Indemnifying Party’s possession compromise or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No discharge such Third Party Claim may be settled by the Indemnifying Party without the Global's prior written consent (which consent shall not be unreasonably withheld) and (y) Global shall not, without the Indemnified Party's prior written consent, admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim on a basis that would result in the imposition of a judgment that would restrict the future activity or conduct of the Indemnified PartyParty or any subsidiary or affiliate thereof.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Global Industrial Technologies Inc), Stock Purchase Agreement (Global Industrial Technologies Inc)
Procedures Relating to Indemnification. (a) Any party seeking indemnification under Section 6.01 (If a claim or demand is made against an “Indemnified Party”, or an Indemnified Party shall otherwise learn of an assertion, by any Person who is not a party to this Agreement (or an Affiliate thereof) shall promptly give the as to which an Indemnifying Party from whom may be obligated to provide indemnification is being sought pursuant to this Agreement (an “Indemnifying Party”) notice of any matter which a "Third Party Claim"), such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises; provided that the failure to provide such notice shall not release will notify the Indemnifying Party from any in writing, and in reasonable detail, of its obligations under this Article VI 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 is materially shall have been actually prejudiced by as a result of such failure. With respect Thereafter, the Indemnified Party will deliver to any recovery the Indemnifying Party, promptly after the Indemnified Party's receipt thereof, copies of all material notices and documents (including court papers) received or indemnification sought transmitted by the Indemnified Party relating to the Third Party Claim.
(b) If a Third Party Claim is made against an Indemnified Party from Party, the Indemnifying Party will be entitled to participate in or to assume the defense thereof (in either case, at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified 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 Indemnified Party for any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof; provided, however, that if in the Indemnified Party's reasonable judgment a conflict of interest exists in respect of such claim or if the Indemnifying Party shall have assumed responsibility for such claim with any reservations or exceptions, such Indemnified Party will have the right to employ separate counsel reasonably satisfactory to the Indemnifying Party to represent such Indemnified Party and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel for all Indemnified Parties similarly situated) shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party will have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party will control such defense. The Indemnifying Party will be liable for the reasonable fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnified Party copies of all material correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnified Party fully informed of all material developments relating to or in connection with such Third Party Claim (including providing to the Indemnified Party on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, the Parties will cooperate in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party), which cooperation shall include the retention in accordance with this Agreement and (upon the Indemnifying Party's request) the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(c) 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 Indemnified Party's prior written consent (which consent will not be unreasonably withheld); provided, however, that if the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party 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 Indemnified Party and its Affiliates completely from all Liability in connection with such Third Party Claim; provided, however, that the Indemnified Party may refuse to agree to any such settlement, compromise or discharge (x) that provides for injunctive or other non-monetary relief affecting the Indemnified Party or any of its Affiliates or (y) that, in the reasonable opinion of the Indemnified Party, would otherwise materially adversely affect the Indemnified Party or any of its Affiliates. Whether or not the Indemnifying Party shall have assumed the defense of a Third Party Claim, the Indemnified Party 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 will not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim, if Claim will be asserted by reasonably prompt written notice given by the Indemnified Party to the Indemnifying Party does not notify the from whom such indemnification is sought. The failure by any Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that to so notify the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
(b) If an Indemnified Party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such notice, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided that the failure to provide such notice shall will not release relieve the Indemnifying Party from any of its obligations liability which it may have to such Indemnified Party under this Article VI Agreement, except to the extent that the Indemnifying Party is materially shall have been actually prejudiced by such failure. If .
(e) In the event of payment in full by an Indemnifying Party acknowledges in writing its obligation to indemnify the any Indemnified Party hereunder against in connection with any Losses that may result from such Third Party Claim, then the such Indemnifying Party will be subrogated to and shall be entitled stand in the place of such Indemnified Party as to assume and control the defense any events or circumstances in respect of which such Indemnified Party may have any right or claim relating to such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any claimant or plaintiff asserting such Third Party Claim as provided above, the or against any other Person. Such Indemnified Party shall will cooperate with the such Indemnifying Party in a reasonable manner, and at the cost and expense of such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession prosecuting any subrogated right or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified Partyclaim.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Alpha Industries Inc), Asset Purchase Agreement (Conexant Systems Inc)
Procedures Relating to Indemnification. (a) Any In order for any indemnified party seeking indemnification under Section 6.01 (an “Indemnified Party”) shall promptly give specified in Section 6.02 to make a claim for any indemnification as provided for under Section 6.02 in respect of, arising out of or involving a claim or demand made by any person against the Indemnified Party from whom indemnification is being sought (an a “Third-Party Claim”), such Indemnified Party must notify the indemnifying party (the “Indemnifying Party”) notice in writing, and in reasonable detail, of any matter which the Third-Party Claim within twenty Business Days after receipt by such Indemnified Party has determined has given or would reasonably be expected of written notice of the Third-Party Claim; provided, however, that failure to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises; provided that the failure to provide such notice notification shall not release affect the Indemnifying Party from any of its obligations under this Article VI indemnification provided hereunder except to the extent the Indemnifying Party is materially shall have been prejudiced by as a result of such failure. With respect to any recovery or indemnification sought by an Thereafter, the Indemnified Party from 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) received by the Indemnified Party relating to the Third-Party Claim; provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party that does not involve shall have been prejudiced as a Third result of such failure.
(b) If a Third-Party Claim, if the Indemnifying Party does not notify the Claim is made against an Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claimParty, the Indemnifying Party shall be deemed entitled to have accepted participate in the defense thereof and, if it so chooses and agreed with such claim.
(b) If an Indemnified Party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such notice, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claimtherefor, then to assume the defense thereof with counsel selected by the Indemnifying Party shall be entitled to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or such counsel is reasonably likely not objected to exist a conflict of interest that would make it inappropriate in the judgment of by the Indemnified Party in its sole and absolute discretion for reasonable discretion. Should the same counsel Indemnifying Party so elect to represent both assume the defense of a Third-Party Claim, the Indemnifying Party shall not be liable to the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof (except in the case of a conflict of interest, as described below). If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, then it being understood that the Indemnified Indemnifying Party shall be entitled to retain its own counsel control such defense (except that if, in each jurisdiction for which the Indemnified Party determines counsel is required, at reasonable judgment of the Indemnifying Party’s expense. In the event that counsel, a conflict of interest exists between the Indemnifying Party exercises and the right to undertake any such defense against any such Third Party Claim as provided aboveIndemnified Party, the Indemnified Party may employ its own counsel, separate from the counsel employed by the Indemnifying Party, and may control its defense to the extent deemed necessary by the Indemnified Party). The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party is not assuming the defense thereof or during a conflict of interest (as described above).
(c) If the Indemnifying Party so elects to assume the defense of any Third-Party Claim, all of the Indemnified Parties shall cooperate with the Indemnifying Party in such the defense or prosecution thereof. In any event, the Indemnified Party and make available to its counsel shall cooperate with the Indemnifying Party and its counsel and shall not assert any position in any proceeding inconsistent with that asserted by the Indemnifying Party; provided, at however, that the Indemnifying Party’s expense, all witnesses, pertinent records, materials foregoing shall not prevent the Indemnified Party from taking the position that it is entitled to indemnification hereunder. All reasonable out-of-pocket costs and information expenses incurred in the connection with an Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required cooperation shall be borne by the Indemnifying Party. SimilarlySuch cooperation shall include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records and information which are relevant to such Third-Party Claim, in and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the event Indemnifying Party shall have assumed the defense of a Third-Party Claim, the Indemnified Party isshall not admit any liability with respect to, directly or indirectlysettle, conducting compromise or discharge, such Third-Party Claim without the Indemnifying Party’s prior written consent. If the Indemnifying Party shall have assumed the defense against of a Third-Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of a Third-Party Claim which the Indemnifying Party may recommend and which by its terms releases the Indemnifying Party completely in connection with such Third-Party Claim and which would not impose on the Indemnified Party and obligation to pay any amount or otherwise adversely affect the Indemnified Party or require any relief other than monetary damages (provided, however, that the Indemnified Party shall not be required to consent to any settlement, compromise or discharge which would require payments by the Indemnified Party in connection with such Third Party Claim).
(d) Notwithstanding the foregoing, the Indemnifying Party shall cooperate with 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 Indemnified Party in defending such defense and make available to Third-Party Claim) if the Indemnified PartyThird-Party Claim seeks an order, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession injunction or under the Indemnifying Party’s control relating thereto as is reasonably required by other equitable relief or relief for other than money damages against the Indemnified Party. No such Third The indemnification required by Section 6.02 shall be made only after final judgment which can not be further appealed. All claims under Section 6.02 other than Third-Party Claim may Claims shall be settled governed by the Indemnifying Party Section 6.04.
(e) The indemnification provisions of this Article VI (i) shall apply without the prior written consent regard to, and shall not be subject to, any limitation by reason of the Indemnified Partyset-off, limitation or otherwise and (ii) are intended to be comprehensive and not to be limited by any requirements of law concerning prominence of language or waiver of any legal right under any law (including, without limitation, rights under any workers compensation statute or similar statute conferring immunity from suit).
Appears in 2 contracts
Sources: Stock Purchase Agreement (Ampal-American Israel Corp), Stock Purchase Agreement (Ampal-American Israel Corp)
Procedures Relating to Indemnification. (a) Any party seeking indemnification under Section 6.01 If any Indemnified Person receives written notice of the commencement of any Action or Proceeding or the assertion of any claim or demand made by any third Person against such Indemnified Person (an a “Indemnified PartyThird-Party Claim”) and such Indemnified Person intends to seek indemnity pursuant to this Article 6, then such Indemnified Person shall provide the Indemnifying Person with a Claim Notice regarding the Third-Party Claim promptly give the Party from whom indemnification is being sought and in any event within twenty (an “Indemnifying Party”20) Business Days after receipt by such Indemnified Person of written notice of any matter which such Indemnified the Third-Party has determined has given or would reasonably be expected Claim; provided, however, that failure to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises; provided that the failure to provide such notice notification shall not release affect the Indemnifying Party from any of its obligations under this Article VI indemnification provided hereunder except to the extent the Indemnifying Party is materially Person shall have been actually prejudiced by as a result of such failure. With respect to any recovery or indemnification sought by an Indemnified Party from the Indemnifying Party that does not involve a Third Party Claim, if the Indemnifying Party does not notify the Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
(b) If an Indemnified any Third-Party shall receive notice of any Claim involves a claim or demand asserted by a third party (eachagainst an Indemnified Person, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VIthe Indemnifying Person may, within thirty ten (3010) calendar days of the after receipt of such notice, the Indemnified Party shall give the Indemnifying Party notice of such Third Third-Party Claim; provided that Claim and upon notice to the failure to provide such notice shall not release Indemnified Person, assume, with counsel selected by the Indemnifying Party from any of its obligations under this Article VI except Person and reasonably satisfactory to the extent Indemnified Person, at the sole cost and expense of the Indemnifying Person, the settlement or defense thereof; provided, however, that the Indemnifying Party is materially prejudiced by Person may not assume such failure. If settlement or defense (i) unless the Indemnifying Party Person acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against Person for any Losses that may result resulting from such Third Third-Party Claim, (ii) if the outcome of any judgment or settlement in the matter could materially adversely affect the business of the Purchaser Indemnified Persons, or the Companies, (iii) if the Third-Party Claim was brought by a Government Entity or involves a “qui tam” claim, or (iv) if the Third-Party Claim involves claims for specific performance or other equitable relief as its primary source of relief, and provided, further, that the Indemnified Person may participate at the cost and expense of the Indemnified Person in such settlement or defense through counsel chosen by it. Notwithstanding the foregoing, if the Third-Party Claim with respect to a breach of the representations and warranties contained in Section 4.9 or the covenants contained in Section 5.4 relates to any Tax period ending after the Closing Date, then the no Indemnifying Party Person other than Purchaser shall be entitled to assume and control the defense of such Third Third-Party Claim; provided, however, that if the Indemnifying Person is precluded by this sentence from assuming and controlling the defense of a Third-Party Claim, the Indemnifying Person may participate in the defense and settlements of such claim through counsel chosen by it at its sole cost and expense. Notwithstanding the foregoing, (i) the Indemnified Person may, at the sole cost and expense of the Indemnified Person, at any time prior to the Indemnified Person’s delivery of the Third-Party Claim pursuant to Section 6.5(a), file any motion, answer or other pleadings or take any other action that the Indemnified Person reasonably believes to be necessary or appropriate to protect its interests, (ii) the Indemnified Person may take over the control of the defense or settlement of a Third-Party Claim at any time if it irrevocably waives its expense right to indemnity under this Article 6 with respect to such claim and through counsel (iii) unless and until the Indemnifying Person acknowledges its obligation to indemnify the Indemnified Person for all Losses resulting from such Third-Party Claim, the Indemnifying Person may not, without the consent of the Indemnified Person, settle or compromise any Third-Party Claim or consent to the entry of any judgment with respect to any Third-Party Claim, such consent not to be unreasonably withheld, conditioned, or delayed. So long as the Indemnifying Person is contesting any such claim in good faith, the Indemnified Person shall not pay or settle any such claim without the Indemnifying Person’s consent, such consent not to be unreasonably withheld, conditioned, or delayed.
(c) If the Indemnifying Person validly elects to assume and control the defense of a Third-Party Claim, then: (i) the Indemnifying Person will not be liable for any settlement of such Third-Party Claim effected without its consent, which consent will not unreasonably be withheld, conditioned, or delayed, (ii) the Indemnifying Person may settle such Third-Party Claim without the consent of the Indemnified Person if (A) all monetary damages payable in respect of the Third-Party Claim are paid by the Indemnifying Person, (B) the Indemnified Person receives a full, complete, and unconditional release in respect of the Third-Party Claim without any admission or finding of obligation, Liability, fault, or guilt (criminal or otherwise) with respect to the Third-Party Claim, and (C) no injunctive, extraordinary, equitable, or other relief of any kind is imposed on the Indemnified Person or any of its choice Affiliates, (iii) the Indemnifying Person may otherwise settle such Third-Party Claim only with the consent of the Indemnified Person, which consent will not unreasonably be withheld, conditioned, or delayed, and (iv) the Indemnified Person may employ separate counsel and participate in the defense thereof, but the Indemnified Person will be responsible for the fees and expenses of such counsel, provided, however that if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided reasonably concludes that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel has conflicting interests or different defenses available to represent both the Indemnified Party and it than the Indemnifying PartyParty with respect to such Third-Party Claim, then the Indemnified Party may employ separate counsel and participate in the defense thereof and the fees and expenses of such counsel shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at obligation of the Indemnifying Party’s expense. In the event that .
(d) If the Indemnifying Person does not validly elect to assume and control the defense of a Third-Party exercises Claim or is otherwise precluded from assuming and controlling the defense hereunder, then the Indemnified Person shall assume the exclusive right to undertake any defend, compromise, or settle such Third-Party Claim. Any defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available costs required to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required be paid by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available Person to the Indemnified PartyPerson shall be paid as incurred, at promptly against delivery of invoices therefor.
(e) Each Indemnified Person shall use commercially reasonable efforts, and shall cause its Affiliates and Agents to use commercially reasonable efforts, to provide the Indemnifying Party’s expensePerson with such assistance (without charge) as may reasonably be requested by the Indemnifying Person in connection with any indemnification or defense provided for in this Agreement, all including, without limitation, providing the Indemnifying Person with such witnessesinformation, documents, records, materials and information in reasonable access to the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No services of and consultations with such Third Party Claim may be settled by the Indemnifying Party without the prior written consent personnel of the Indemnified PartyPerson or its Affiliates as the Indemnifying Person deems necessary (provided that such access must not unreasonably interfere with the performance of the duties performed by or responsibilities of such personnel).
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (BioTelemetry, Inc.)
Procedures Relating to Indemnification. (a) Any party seeking In order for any Indemnified Party to be entitled to any indemnification provided for under Section 6.01 this Agreement arising out of a claim made by any Person against the Indemnified Party (an a “Indemnified PartyThird-Party Claim”) shall promptly give the Party from whom indemnification is being sought (an “Indemnifying Party”) notice of any matter which ), such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement stating must notify the Indemnifying Party in writing (and in reasonable detail the factual basis detail) of the claim Third-Party Claim promptly (but in no event more than 10 days) following receipt by such Indemnified Party of notice of the Third-Party Claim. The failure to so notify shall not relieve the Indemnifying Party of any liability it (or they) may have to such Indemnified Party if such failure does not prejudice the Indemnifying Party. Thereafter, the Indemnified Party shall deliver to the extent known Indemnifying Party, promptly following the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party, and containing a reference Party relating to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent the Indemnifying Party is materially prejudiced by such failure. With respect to any recovery or indemnification sought by an Indemnified Party from the Indemnifying Party that does not involve a Third Third-Party Claim, if the Indemnifying Party does not notify the Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
(b) If a Third-Party Claim is made against an Indemnified Party shall receive notice of any claim or demand asserted by a third party (eachParty, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such notice, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then the Indemnifying Party shall be entitled to participate in the defense thereof and, if the Indemnifying Party acknowledges its responsibility to indemnify the Indemnified Party as provided in this Agreement with respect to Losses incurred by the Indemnified Party with respect to such Third-Party Claim, the Indemnifying Party may elect to assume and control of the defense of such Third Third-Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is requiredClaim, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate expense with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required counsel selected by the Indemnifying Party. Similarly; provided, in the event however, that such counsel is not reasonably objected to by the Indemnified Party. Should the Indemnifying Party is, directly or indirectly, conducting so elect to assume control of the defense against any such of a Third Party Claim, the Indemnifying Party shall cooperate with not be liable to the Indemnified Party for any legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right to participate in the defense thereof and make available to employ counsel (not reasonably objected to by the Indemnifying Party), at its own expense, separate from the counsel employed by the Indemnifying Party (it being understood that the Indemnifying Party shall control such defense). The Indemnified Party shall be entitled to reimbursement for all costs, fees and expenses (including the fees and expenses of counsel employed by the Indemnified Party) for any period during which the Indemnifying Party has not assumed the defense thereof (other than during any period in which the Indemnified Party shall have failed to give notice of the Third-Party Claim as provided above). If the Indemnifying Party chooses to defend or prosecute a Third-Party Claim, all the Indemnified Parties shall, at the Indemnifying Party’s expensecost, cooperate in all such witnesses, records, materials and information material respects in the defense or prosecution thereof. Such cooperation at the Indemnifying Party’s possession or under cost shall include the retention and (upon the Indemnifying Party’s control relating thereto as is request) the provision to the Indemnifying Party of records and information that are reasonably required by the Indemnified Party. No such Third Party Claim may be settled requested by the Indemnifying Party or that are reasonably relevant to such Third-Party Claim, and making employees available on a mutually convenient basis during normal business hours to provide additional information and explanation of any material provided hereunder. Whether or not the Indemnifying Party assumes the defense of a Third-Party Claim, (x) the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge such Third-Party Claim without the Indemnifying Party’s prior written consent consent, not to be unreasonably withheld, and (y) the Indemnifying Party shall not, without the Indemnified Party’s prior written consent, admit any liability with respect to, or settle, compromise or discharge, such Third-Party Claim on a basis that would result in the imposition of a judgment that would restrict the future activity or conduct of the Indemnified Party or any subsidiary or affiliate thereof.
(c) In the event any Indemnified Party should have a claim against the Indemnifying Party under Section 8.1 that does not involve a Third-Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim promptly (but in no event more than 30 days) following discovery by the Indemnified Party of such claim to the Indemnifying Party. The failure to so notify shall not relieve the Indemnifying Party of any liability it may have to such Indemnified Party if such failure does not prejudice the Indemnifying Party. If the Indemnifying Party disputes its liability with respect to such claim, prior to any party’s seeking any relief at law, the Indemnifying Party and the Indemnified Party shall proceed in good faith to negotiate a resolution of such dispute for a period of at least 60 days after the Indemnifying Party’s receipt of the Indemnified Party’s notice.
(d) Any valid claim for indemnification under this Agreement shall describe the claim in reasonable detail, include copies of any material written evidence thereof and indicate the estimated amount of such claim.
(e) Each Indemnified Party shall make commercially reasonable efforts to mitigate any claim of liability that an Indemnified Party asserts under this Article VIII. In the event that an Indemnified Party shall fail to make such commercially reasonable efforts to mitigate any claim or liability, then notwithstanding anything else to the contrary contained herein, CSL shall not be required to indemnify any Indemnified Party for any Loss that could reasonably be expected to have been avoided if the Indemnified Party had made such efforts. All costs of mitigation and all damages to an Indemnified Party related thereto shall be the liability of the Indemnifying Party.
Appears in 2 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement (Sigma Aldrich Corp)
Procedures Relating to Indemnification. (ai) Any party seeking indemnification under Section 6.01 In order for a Person (an the “Indemnified Party”) shall promptly give the Party from whom to be entitled to any indemnification is being sought (an “Indemnifying Party”) notice of any matter which such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification provided for under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement in respect of, arising out of which such right of indemnification is claimed or arises; provided that the failure to provide such notice shall not release the Indemnifying Party from involving a claim or demand made by any of its obligations under this Article VI except to the extent the Indemnifying Party is materially prejudiced by such failure. With respect to any recovery or indemnification sought by an Indemnified Party from the Indemnifying Party that does not involve a Third Party Claim, if the Indemnifying Party does not notify Person against the Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
(b) If an Indemnified Party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI), within thirty (30) days such Indemnified Party must notify the indemnifying party in writing, and in reasonable detail, of the Third Party Claim as promptly as reasonably possible after receipt by such Indemnified Party of notice of the Third Party Claim; provided, however, that failure to give such notification on a timely basis shall 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 noticefailure. Thereafter, the Indemnified Party shall give deliver to the Indemnifying indemnifying party, within five (5) business days after the Indemnified Party’s receipt thereof, with copies of all notices and documents (including court papers) received by the Indemnified Party notice relating to the Third Party Claim; provided, however, that failure to deliver such copies on a timely basis shall 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.
(ii) If a Third Party Claim is made against an Indemnified Party, the indemnifying party shall be entitled to participate in the defense thereof and, if it so chooses, to assume the defense thereof with counsel selected by the indemnifying party. Should the indemnifying party so elect to assume the defense of a Third Party Claim:
A. It shall defend such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the indemnifying party to a final conclusion or will be settled at the discretion of the indemnifying party (with any such settlement consented to by the Indemnified Party); and
B. The indemnifying party shall not be liable to the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof. If the indemnifying party assumes such defense, the Indemnified Party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the indemnifying party, it being understood, however, that the indemnifying party shall control such defense. If the indemnifying party chooses to defend any Third Party Claim, all the parties hereto shall cooperate in the defense or prosecution of such Third Party Claim; provided that . Such cooperation shall include the failure to provide such notice shall not release retention and (upon the Indemnifying Party from any of its obligations under this Article VI except indemnifying party’s request) the provision to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party acknowledges in writing its obligation indemnifying party of records and information which are reasonably relevant to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then the Indemnifying Party shall be entitled and making employees available on a mutually convenient basis to assume provide additional information and control the defense explanation of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; any material provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified Partyhereunder.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Converted Organics Inc.), Asset Purchase Agreement (Converted Organics Inc.)
Procedures Relating to Indemnification. (a) Any party seeking In order for an Indemnitee to be entitled to any indemnification provided for under Section 6.01 (an “Indemnified Party”) shall promptly give the Party from whom indemnification is being sought (an “Indemnifying Party”) notice of any matter which such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement in respect of, arising out of which or involving a claim made by any Person who is not an Indemnitee against the Indemnitee (a "Third Party Claim"), such right Indemnitee must notify the party who may become obligated to provide indemnification hereunder (the "indemnifying party") in writing, and in reasonable detail, of indemnification is claimed or arisesthe Third Party Claim reasonably promptly, and in any event within 20 business days after receipt by such Indemnitee of written notice of the Third Party Claim; provided provided, however, that the failure to provide give such notice notification shall not release affect the Indemnifying Party from any of its obligations under this Article VI indemnification provided hereunder except to the extent the Indemnifying Party is materially indemnifying party shall have been actually prejudiced by as a result of such failure. With ; provided further, however, that with respect to any recovery or indemnification sought by an Indemnified Party from matter for which any GBC Indemnitor is the Indemnifying Party that does not involve a Third Party Claimindemnifying party, if the Indemnifying Party does not notify the Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party GBC Indemnitor shall be deemed to have accepted received notice with respect to all matters by or against any Retained Company that arose prior to, or were otherwise pending at, the Effective Time. After any required notification (if applicable), the Indemnitee shall deliver to the indemnifying party, promptly after the Indemnitee's receipt thereof, copies of all notices and agreed with such claimdocuments (including court papers) received by the Indemnitee relating to the Third Party Claim.
(b) If an Indemnified Party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party Claim”) Claim is made against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such noticean Indemnitee, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then the Indemnifying Party shall indemnifying party will be entitled to assume and control participate in the defense of such Third Party Claim at its expense and through counsel of its choice thereof and, if it gives notice of its intention so chooses, to do so to assume the Indemnified Party within fifteen defense thereof (15) days at the expense of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same indemnifying party) with counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required selected by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified Party.the
Appears in 2 contracts
Sources: Merger Agreement (Gaylord Entertainment Co), Merger Agreement (Westinghouse Electric Corp)
Procedures Relating to Indemnification. (ai) Any party Party seeking indemnification under this Section 6.01 6.2 (an “Indemnified Party”) shall promptly give the Party from whom indemnification is being sought (an “Indemnifying Party”) notice of any matter which such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises; provided provided, however, that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI Section 6.2 except to the extent the Indemnifying Party is materially prejudiced by such failure. With respect to any recovery or indemnification sought by an Indemnified Party from the Indemnifying Party that does not involve a Third Party Claim, if the Indemnifying Party does not notify the Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim. If the Indemnifying Party has disputed a claim for indemnification (including any Third Party Claim), the Indemnifying Party and the Indemnified Party shall proceed in good faith to negotiate a resolution to such dispute. If the Indemnifying Party and the Indemnified Party cannot resolve such dispute in thirty (30) days after delivery of the dispute notice by the Indemnifying Party, such dispute shall be resolved by arbitration pursuant to Section 7.3.
(bii) If an Indemnified Party shall receive notice of any claim Legal Proceeding, claim, audit, demand or demand asserted assessment by any Person who is not a third party to this Agreement (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VISection 6.2, within thirty (30) days of the receipt of such notice, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided provided, however, that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI Section 6.2 except to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then the Indemnifying Party shall be entitled to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice reasonably satisfactory to the Indemnified Party if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party, and the Indemnified Party shall have the right to participate in the defense of such Third Party Claim with counsel selected by it subject to the Indemnifying Party’s right to control the defense thereof; provided that provided, however, that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in all reasonable respects in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in all reasonable respects in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified Party. If the Indemnifying Party does not assume the defense of a Third-Party Claim in the manner and within the period provided in this Section 6.2(d)(ii), or if the Indemnifying Party fails to take reasonable steps necessary to diligently conduct the defense of a Third-Party Claim within five (5) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party may conduct the defense of the Third-Party Claim at the expense of the Indemnifying Party and seek indemnification for any and all Losses based upon, arising from or relating to such Third Party Claim, and the Indemnifying Party shall be bound by any determination resulting from such Third-Party Claim or any compromise or settlement effected by the Indemnified Party. Notwithstanding anything to the contrary in this Section 6.2, unless requested by the Indemnified Party, the Indemnifying Party shall not have the right to defend or direct the defense of any Third Party Claim that seeks an injunction or other equitable relief against the Indemnified Party.
(iii) Any Indemnified Party and any Indemnifying Party, as the case may be, shall keep the other Person fully informed of the status of any Third-Party Claim and any related Proceeding at all stages thereof where such Person is not represented by its own counsel.
(iv) Once a Loss is agreed to by the Indemnifying Party or finally adjudicated to be payable pursuant to this Section 6.2, the Indemnifying Party shall indemnify, pay or reimburse such Loss within fifteen (15) days of such agreement or final, non-appealable adjudication by wire transfer of immediately available funds.
Appears in 2 contracts
Sources: Share Transfer Agreement (Tencent Holdings LTD), Share Transfer Agreement (Tencent Holdings LTD)
Procedures Relating to Indemnification. (a) Any party Person seeking indemnification under Section 6.01 5.02 (an “Indemnified Party”) shall promptly give the Party from whom indemnification is being sought (an “Indemnifying Party”) written notice (the “Indemnity Notice”) of any matter which such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises; provided that the failure to provide such notice the Indemnity Notice shall not release the Indemnifying Party from any of its obligations under this Article VI 5 except to the extent the Indemnifying Party is materially prejudiced by such failure. With respect to any recovery or indemnification sought by an Indemnified Party from the Indemnifying Party that does not involve a Third Party Claim, if the Indemnifying Party does not notify the Indemnified Party within thirty (30) days from its receipt of the notice Indemnity Notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim. If the Indemnifying Party has disputed a claim for indemnification (including any Third Party Claim), the Indemnifying Party and the Indemnified Party shall proceed in good faith to negotiate a resolution to such dispute. If the Indemnifying Party and the Indemnified Party cannot resolve such dispute in thirty (30) days after delivery of the dispute notice by the Indemnifying Party, such dispute shall be resolved by arbitration pursuant to Section 6.12.
(b) If an Indemnified Party shall receive written notice (the “Claim Notice”) of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI5, within thirty (30) days of the receipt of such noticethe Claim Notice, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI 5 except to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then the Indemnifying Party shall be entitled to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified Party.
Appears in 2 contracts
Sources: Share Purchase Agreement (Qudian Inc.), Share Purchase Agreement (Secoo Holding LTD)
Procedures Relating to Indemnification. (a) Any In order for an indemnified party seeking to be entitled to any indemnification under Section 6.01 (an “Indemnified Party”) shall promptly give the Party from whom indemnification is being sought (an “Indemnifying Party”) notice of any matter which such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations for under this Article VI VII in respect of, arising out of or involving a claim or demand made by any Person, firm, Governmental Entity or corporation (other than a party hereto or Affiliate thereof) against the indemnified party (a “Third-Party Claim”), such indemnified party must notify the indemnifying party in writing, and in reasonable detail, of the Third-Party Claim as promptly as reasonably practicable after receipt by such indemnified party of written notice of the Third-Party Claim; provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party is materially indemnifying party shall have been actually prejudiced by as a result of such failure. With respect The indemnified party shall deliver to any recovery or indemnification sought the indemnifying party copies of all notices and documents (including court papers) received by an Indemnified the indemnified party relating to the Third-Party from the Indemnifying Party that does not involve a Third Party Claim, if the Indemnifying Party does not notify the Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claimClaim as promptly as practicable after receipt.
(b) If a Third-Party Claim is made against an Indemnified Party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such noticeindemnified party, the Indemnified Party shall give indemnifying party will be entitled to participate in the Indemnifying Party notice of such Third Party Claim; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party defense thereof and, if it so chooses and acknowledges in writing without reservation its obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such Third indemnified party therefore, to assume the defense thereof with counsel selected by the indemnifying party and reasonably satisfactory to the indemnified party. Should the indemnifying party so elect to assume the defense of a Third-Party Claim, then the Indemnifying indemnifying party will not be liable to the indemnified party for legal expenses subsequently incurred by the indemnified party in connection with the defense thereof, unless the Third-Party Claim involves potential conflicts of interest or substantially different defenses for the indemnified party and the indemnifying party. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in defense thereof and to employ counsel, at its own expense (except as provided in the immediately preceding sentence), 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 indemnified party for any period during which the indemnifying party has not assumed the defense thereof. If the indemnifying party chooses to defend any Third-Party Claim, all the parties hereto shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the indemnifying party’s request) the provision to the indemnifying party of records and information that are reasonably relevant to such Third-Party Claim, and the use of reasonable efforts to make employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party shall have assumed the defense of a Third-Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge, such Third-Party Claim without the indemnifying party’s prior written consent (which consent shall not be unreasonably withheld). The indemnifying party may pay, settle or compromise a Third-Party Claim with the written consent of the indemnified party, so long as such settlement includes (A) an unconditional release of the indemnified party from all liability in respect of such Third-Party Claim, (B) does not subject the indemnified party to any injunctive relief or other equitable remedy and (C) does not include a statement or admission of fault, culpability or failure to act by or on behalf of any indemnified party.
(c) Notwithstanding any contrary provisions contained in Section 7.4(b), with respect to any Third-Party Claim for which indemnification is available under Section 7.2(a)(v), each of Purchaser and Seller shall be entitled to assume and control participate jointly in controlling the defense of such Third Third-Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party Claim, and the Indemnifying Party, then the Purchaser Indemnified Party Parties shall not be entitled to retain its own counsel admit any liability with respect to, or settle, compromise or discharge, any such Third-Party Claim if and to the extent that Seller may be required to bear any of the liability, cost or expense associated with such Third-Party Claim. In addition, notwithstanding the preceding provisions of this Section 7.4, if a Third-Party Claim is made in each jurisdiction for respect of which the a Purchaser Indemnified Party determines counsel is requiredwould be entitled to recover from Seller under Section 7.2 by reason of a failure of a representation or warranty in Section 3.8 to be true or correct, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any then such defense against any such Third Third-Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party be governed by procedures corresponding to those in such defense Section 5.7(f) and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required not by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent preceding sentences of the Indemnified Partythis Section 7.4.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Bank of Montreal /Can/), Purchase and Sale Agreement (E Trade Financial Corp)
Procedures Relating to Indemnification. (ai) Any party Party seeking indemnification under this Section 6.01 9.2 (an “Indemnified Party”) shall promptly give the Party from whom indemnification is being sought (an “Indemnifying Party”) notice of any matter which such Indemnified Party has determined has given or would could reasonably be expected to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis nature of the claim, the amount of the Losses if known or reasonably ascertainable at the time such claim to is made, or if not then reasonably ascertainable, the extent known maximum amount of such claim reasonably estimated by the Indemnified Party, Party and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises; provided provided, however, that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI Section 9.2 except to the extent the Indemnifying Party is materially prejudiced by such failure. With respect to any recovery or indemnification sought by an Indemnified Party from the Indemnifying Party that does not involve a Third Party Claim, if the Indemnifying Party does not notify the Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with disputed such claim. If the Indemnifying Party has disputed (or been deemed to have disputed) a claim for indemnification (including any Third Party Claim), the Indemnifying Party and the Indemnified Party shall proceed in good faith to negotiate a resolution to such dispute. If the Indemnifying Party and the Indemnified Party cannot resolve such dispute in thirty (30) days after delivery of the dispute notice by the Indemnifying Party, or upon expiry of the thirty (30) days’ period from the Indemnifying Party’s receipt of the notice from the Indemnified Party, such dispute shall be resolved by arbitration pursuant to Section 10.3.
(bii) If an Indemnified Party shall receive notice of any claim Legal Proceeding, audit, demand or demand asserted by a third party assessment (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VISection 9.2, within thirty twenty (3020) days of the receipt of such notice, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided provided, however, that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI Section 9.2 except to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then the Indemnifying Party shall be entitled to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen thirty (1530) days of the receipt of such notice from the Indemnified PartyParty (or within thirty (30) days following the Closing with respect to any Third Party Claim that exits at the Closing which have been disclosed in Section 3.10 of the Disclosure Schedule); provided that provided, however, that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is requiredcounsel, at the expense of the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified Party (not to be unreasonably withheld, delayed or conditioned) unless the terms of such settlement or compromise (i) call only for a payment to the Indemnified Party (or of the Third Party Claim directly), the full amount of which is indemnified hereunder, (ii) does not impose an injunction or other equitable relief upon the Indemnified Party, and (iii) contains an unconditional release of the Indemnified Party in respect of such claim. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (not to be unreasonably withheld, delayed or conditioned).
Appears in 2 contracts
Sources: Share Purchase Agreement (NetEase, Inc.), Share Purchase Agreement (Alibaba Group Holding LTD)
Procedures Relating to Indemnification. (a) Any In order for a party seeking indemnification under Section 6.01 (an the “Indemnified Party”) shall promptly give to be entitled to any indemnification provided for under this Agreement in respect of a claim, suit or demand made by any Person against the Indemnified Party from whom indemnification is being sought (an a “Third Party Claim”), such Indemnified Party must notify the indemnifying party (the “Indemnifying Party”) notice in writing, and in reasonable detail, of any matter which such the Third Party Claim and the facts known by the Indemnified Party has determined has given or would reasonably be expected to relating thereto promptly within 30 days after receiving written notice from a third party which may give rise to a right of Third Party Claim; provided, however, that failure to give such notification on a timely basis shall not affect the indemnification under this Agreement stating in reasonable detail the factual basis of the claim provided hereunder except to the extent known 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 seven (7) 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 (x) the Indemnifying Party, subject to the limitations set forth in this Article IX, has conceded liability to indemnify the Indemnified Party with respect to all Losses relating to such Third Party Claim, (y) Parent, the Surviving Corporation or any Parent Indemnified Party or their respective representatives are the Indemnified Party, and containing the Indemnified Party reasonably determines that the likely maximum amount of such Losses is less than or equal to the Cap, and (z) the Third Party Claim is not reasonably likely to have an adverse effect on the Indemnified Party or its Affiliate other than as a result of monetary damages, then the Indemnifying Party shall have thirty (30) days after receipt of the Indemnified Party’s notice of a given Third Party Claim to elect, at its option, 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 (unless such Indemnifying Party is the Representative, in which case, such costs shall be payable from the Representative Holdback Amount);
(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 out-of-pocket costs incurred in connection with the Indemnifying Party’s requests pursuant to Sections 9.3(b)(iv), (v) and (vi) which costs shall be reimbursed by the Indemnifying Party;
(iii) the Indemnified Party shall be entitled to monitor such defense at its sole expense;
(iv) the Indemnified Party shall make available to the Indemnifying Party all books and records that are under the control of the Indemnified Party and that the Indemnifying Party reasonably considers necessary or desirable for the defense of such Third Party Claim subject to appropriate confidentiality protection to the extent applicable;
(v) the Indemnified Party shall execute such documents and take such other actions as the Indemnifying Party may reasonably request for the purpose of facilitating the defense of, or any settlement or compromise of such Third Party Claim;
(vi) the Indemnified Party shall otherwise cooperate as reasonably requested by the Indemnifying Party in the defense of such Third Party Claim;
(vii) the Indemnified Party shall not admit any liability with respect to such Third Party Claim; and
(viii) the Indemnifying 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 Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed) if such settlement agreement imposes on the Indemnified Party or any of its Subsidiaries or other Affiliates any obligation other than, in the case where the Representative is the Indemnifying Party, an obligation to pay Losses in an amount less than the Representative Cap.
(c) If (i) the Indemnifying Party has not conceded liability to indemnify the Indemnified Party with respect to all Losses relating to such Third Party Claim, (ii) Parent, Merger Sub, the Surviving Corporation or their respective representatives are the Indemnified Party, and the Indemnified Party reasonably determines in good faith that the likely maximum amount of such Losses is greater than the Representative Cap, (iii) the Indemnifying Party elects not to defend a Third Party Claim or (iv) the Indemnifying Party is not permitted to assume the defense of such Third Party Claim pursuant to Section 9.3(b) above, then the Indemnified Party shall diligently and competently defend such Third Party Claim; provided, however, that the Indemnified Party shall have no right to seek indemnification under this Article IX in respect of 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 prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed).
(d) If any Indemnified Party asserts the existence of a claim giving rise to Losses (but excluding Third Party Claims), such party shall give written notice to the Indemnifying Party promptly upon having knowledge of the existence of such indemnifiable claim (but in any event prior to the applicable Expiration Date). Such written notice shall state that it is being given pursuant to this Section 9.3, specify, in reasonable detail, the nature and amount of the claim (to the extent they are capable of determination). If such Indemnifying Party contests such assertion of a claim by giving such written notice to the Indemnified Party, then the parties shall act in good faith to reach agreement regarding such claim during a subsequent sixty (60) day period. If litigation or arbitration between the parties shall arise with respect to any such claim, the prevailing party shall be entitled to reimbursement of costs and expenses incurred in connection with such litigation or arbitration as more fully set forth in Section 10.15.
(e) A claim for indemnification for any matter not involving a Third Party Claim may be asserted by notice to the party obligated to indemnify pursuant to Section 10.11. Such notice must be in writing, must set forth in reasonable detail the facts known by the Indemnified Party relating to such claim and amount of the claim (to the extent such amount is capable of determination) and must include a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arisesarises (to the extent such provisions can be determined at that time or a good faith estimate thereof); provided that the provided, that, subject to Section 9.2(d), failure to provide give such notice notification on a timely basis shall not release affect the Indemnifying Party from any of its obligations under this Article VI indemnification provided hereunder except to the extent the Indemnifying Party is materially shall have been actually prejudiced by as a result of such failure. With respect to any recovery or indemnification sought by an Indemnified Party from the Indemnifying Party that does not involve a Third Party ClaimFor purposes of this Section 9.3, if the Indemnifying Party does not notify Stockholder Parties comprise the Indemnified Party, any references to the Indemnified Party within thirty (30in each case except provisions relating to an obligation to make or a right to receive any payments) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
(b) If an Indemnified Party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such notice, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except refer to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then the Indemnifying Party shall be entitled to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified PartyRepresentative.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Verint Systems Inc)
Procedures Relating to Indemnification. (a) Any party seeking indemnification under Section 6.01 Each person to be indemnified pursuant to SECTION 8.1 or SECTION 8.2 (an “Indemnified Party”"INDEMNIFIED PARTY") shall promptly agrees to give prompt notice (a "NOTICE OF THIRD PARTY CLAIM") to the Party from whom indemnification is being sought (an “Indemnifying Party”) notice indemnifying party of the assertion of any matter claim, or the commencement of any suit, action or proceeding, brought against or sought to be collected from such indemnified party (each, a "THIRD PARTY CLAIM"), in respect of which indemnity may be sought by such Indemnified Party has determined has given indemnified party under SECTION 8.1 or would reasonably be expected SECTION 8.2; provided that the omission so to give rise promptly notify the indemnifying party with respect to a right of indemnification Third Party Claim brought against or sought to be collected from such indemnified party will not relieve the indemnifying party from any liability which it may have to such indemnified party under this Agreement stating SECTION 8.1 or SECTION 8.2 except as otherwise provided in reasonable detail the factual basis of the claim SECTION 8.4 or to the extent known that such failure has materially prejudiced such indemnifying party with respect to the defense of such Third Party Claim. If any indemnified party shall seek indemnity under SECTION 8.1 or SECTION 8.2 with respect to a Third Party Claim brought against or sought to be collected from such indemnified party, the indemnifying party shall be entitled to participate therein and, to the extent that it wishes, to assume and direct the defense and settlement thereof with counsel satisfactory to such indemnified party; provided that if any Third Party Claim brought against or sought to be collected from any indemnified party includes a request for injunctive or other equitable relief that, if granted, is reasonably likely to have a Material Adverse Effect or a similar effect on such indemnified party, such indemnified party shall be entitled to control and direct the defense and settlement thereof and in such event the legal and other expenses subsequently incurred by such indemnified party in connection with the defense thereof shall be paid by the Indemnified Partyindemnifying party. After notice from the indemnifying party to an indemnified party of its election to assume and direct the defense and settlement of a Third Party Claim brought against or sought to be collected from such indemnified party which such indemnifying party is entitled to assume and direct under the terms hereof, the indemnifying party shall not be liable to such indemnified party under SECTION 8.1 or SECTION 8.2, as the case may be, for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation; provided that such indemnified party shall have the right to employ counsel to represent such party if in the reasonable judgment of such party, it is advisable for such party to be represented by separate counsel because the representation of both the indemnified party and containing the indemnifying party in such matter could present such counsel with a reference to potential conflict of interest and in such event the fees and expenses of such separate counsel shall be paid by the indemnifying party. Notwithstanding the foregoing provisions of this Agreement SECTION 8.3(a), the indemnifying party shall not (A) without the prior written consent of an indemnified party, effect any settlement of any pending or threatened proceeding in respect of which such right indemnified party is, or with reasonable foreseeability, could have been a party and indemnity could have been sought hereunder by such indemnified party for a Third Party Claim brought against or sought to be collected from such indemnified party, unless such settlement includes an unconditional release of indemnification such indemnified party from all liability arising out of such proceeding (provided that, whether or not such a release is claimed required to be obtained, the indemnifying party shall remain liable to such indemnified party in accordance with SECTION 8.1 or arises; provided SECTION 8.2 in the event that the failure a Third Party Claim is subsequently brought against or sought to provide be collected from such notice indemnified party) or (B) be liable for any settlement of any Third Party Claim brought against or sought to be collected from an indemnified party effected without such indemnifying party's written consent (which shall not release be unreasonably withheld), but if settled with such indemnifying party's written consent, or if there is a final judgment for the Indemnifying plaintiff in any such Third Party from any of its obligations under this Article VI except Claim, such indemnifying party agrees (to the extent stated above) to indemnify the Indemnifying Party indemnified party from and against any loss, liability, claim, damage or expense by reason or such settlement or judgment. The indemnification required by SECTION 8.1 or SECTION 8.2, as the case may be, shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or loss, liability, claim, damage or expense is materially prejudiced by such failure. With respect to incurred.
(b) In the event any recovery indemnified party should have a claim (each, a "DIRECT CLAIM") against any indemnifying party under SECTION 8.1 or indemnification sought by an Indemnified Party from the Indemnifying Party SECTION 8.2 that does not involve a Third Party ClaimClaim being asserted against or sought to be collected from such indemnified party, if the Indemnifying Party does not indemnified party shall deliver notice (a "NOTICE OF DIRECT CLAIM") of such claim with reasonable promptness to the indemnifying party. The failure by any indemnified party so to notify the Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
(b) If an Indemnified Party shall receive notice of any claim or demand asserted by a third indemnifying party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such notice, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided that the failure to provide such notice shall not release relieve the Indemnifying Party indemnifying party from any of its obligations liability which it may have to such indemnified party under this Article VI SECTION 8.1 or SECTION 8.2 except as otherwise provided in SECTION 8.4 or to the extent that the Indemnifying Party is indemnifying party demonstrates that it has been materially prejudiced by such failure. If the Indemnifying Party acknowledges in writing indemnifying party does not notify the indemnified party, within 30 calendar days following its obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party receipt of a Notice of Direct Claim, then that the Indemnifying Party indemnifying party disputes its liability to the indemnified party under SECTION 8.1 or SECTION 8.2, as the case may be, such claim specified by the indemnified party in such Notice of Direct Claim will be conclusively deemed a liability of the indemnifying party under SECTION 8.1 or SECTION 8.2, as the case may be, and the indemnifying party shall be entitled to assume and control pay the defense amount of such liability to the indemnified party 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.
(c) If the indemnifying party has timely disputed its liability with respect to a Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Direct Claim, the Indemnifying Party shall cooperate indemnifying party and the indemnified party agree to proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations, such dispute will be resolved by arbitration held in Denver, Colorado in accordance with the Indemnified Party Commercial Arbitration Rules of the American Arbitration Association (the "AAA") then in such defense and make available to effect unless the Indemnified Party, at parties mutually agree otherwise. Notice of the Indemnifying Party’s expense, all such witnesses, records, materials and information demand for arbitration shall be filed in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required writing by the Indemnified Partyindemnified party with the indemnifying party and with the AAA and shall be made within a reasonable time after the dispute has arisen. No such Third Party Claim Within 30 days after the date the arbitration notice is filed with the AAA, the indemnified party and the indemnifying party shall select one person to act as arbitrator. If the parties are unable to agree upon an arbitrator within 10 days, the arbitrator shall be selected by the AAA within 30 days thereafter. The arbitrator shall be independent and impartial. The arbitrator shall promptly schedule all discovery and the other steps to be taken in resolution of any controversy, dispute or claim and otherwise assume sufficient initiative and control to effect the sufficient and expeditious resolution of the dispute. The award rendered by the arbitrator shall be final and judgment may be settled entered upon it in accordance with applicable law in any court having jurisdiction thereof. Any liability that the indemnifying party agrees to assume, or that is determined by the Indemnifying Party without arbitrator to be a liability of the prior indemnifying party under SECTION 8.1 or SECTION 8.2 will be conclusively deemed a liability of the indemnifying party. Except by written consent of the Indemnified PartyPerson sought to be joined, no arbitration arising out of or relating to this Agreement shall include, by consolidation, joinder or in any other manner, any Person not a party to, or otherwise bound by, this Agreement. The provisions of this Agreement to arbitrate and any other written agreement to arbitrate referred to herein shall be specifically enforceable under the prevailing arbitration law. Each party hereto expressly consents to, and waives any future objection to, such forum and arbitration rules.
(d) If Demeter or Phemus is obligated to indemnify AIMCO or any of its Representatives under this ARTICLE VIII, Demeter or Phemus, as the case may be, will succeed to, and stand in place of NHP or AIMCO in respect of any, similar claims or causes of action of NHP or AIMCO may have against third parties in connection with any matter for which Demeter or Phemus is obligated to indemnify AIMCO or any of its Representatives, but only to the extent that Demeter or Phemus, as the case may be, has indemnified AIMCO or any of its Representatives for such matter. In such event, AIMCO shall cooperate with Demeter and Phemus in a reasonable manner, at the cost and expense of Demeter or Phemus, as the case may be, in prosecuting any such subrogated right or claim, including without limitation, signing claims or bringing actions in the name of NHP or AIMCO.
(e) Each of AIMCO and its Representatives may give notice of a claim under the Escrow Agreement in an amount equal to any amount for which it may be entitled to indemnification under this ARTICLE VIII upon notice to Capricorn specifying in reasonable detail the basis for such claim. Neither the giving of any such notice, nor the failure to give any such notice, of a claim under the Escrow Agreement will constitute an election of remedies or limit AIMCO or any of its Representatives in any manner in the enforcement of any other remedies that may be available to it.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Apartment Investment & Management Co), Stock Purchase Agreement (Apartment Investment & Management Co)
Procedures Relating to Indemnification. (a) Any party seeking indemnification under Promptly after receipt by any Buyer Indemnitees or Seller Indemnitees (for purposes of this Section 6.01 (an 9.05, the “Indemnified Party”) shall promptly give of any Proceeding, claim or demand made against it by a third party (a “Third-Party Claim”) which gives rise to a claim for indemnification against an indemnifying party under this Agreement (the Party from whom indemnification is being sought (an “Indemnifying Party”) notice of any matter which such ), then the Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement stating will as promptly as practicable send notice in writing, and in reasonable detail detail, of the Third-Party Claim (including the factual basis of for the claim Third-Party Claim, and, to the extent known by known, the amount of the Third-Party Claim) to the Indemnifying Party; provided, however, that failure to give such notification to the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent the Indemnifying Party is materially actually prejudiced by the Indemnified Party’s failure to give such failurenotice. With respect to any recovery or indemnification sought by an Indemnified Party from the Indemnifying Party that does not involve a Third Party ClaimThereafter, if the Indemnifying Party does not notify the Indemnified Party within thirty will deliver to the Indemnifying Party, as promptly as reasonably practicable after the Indemnified Party’s receipt thereof, copies of all notices and documents (30including court papers) days from its receipt of the notice from received by the Indemnified Party that the Indemnifying relating to such Third-Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claimClaim.
(b) If a Third-Party Claim is made against an Indemnified Party, the Indemnifying Party shall receive will be entitled to participate in the defense of such Third-Party Claim and, if it so chooses, to assume the defense of the Third-Party Claim with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party and, after notice from the Indemnifying Party to the Indemnified Party of any claim or demand asserted by a third party (each, a “Third its election to assume the defense of such Third-Party Claim”) against it or which may give rise , the Indemnifying Party will not, be liable to a claim for Loss the Indemnified Party under this Article VI, within thirty (30) days of IX for any fees or other counsel or any other expenses with respect to the receipt defense of such noticeThird-Party Claim, in each case subsequently incurred by the Indemnified Party shall give in connection with the Indemnifying Party notice defense of such Third Third-Party Claim; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party acknowledges in writing its obligation does not, or is not pursuant to indemnify Section 9.05(c) permitted to, assume the defense of a Proceeding, the Indemnified Party hereunder against any Losses will have the right to assume the defense and employ separate counsel to represent such Indemnified Party and the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes such defense, the Indemnified Party will have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood, however, that may result from the Indemnifying Party will control such Third defense and all the parties hereto will cooperate in the defense or prosecution of such Third-Party Claim. Such cooperation will include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third-Party Claim, then and making employees and other representatives and advisors reasonably available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. If the Indemnifying Party shall assumes the defense of a Third-Party Claim (y) no compromise or settlement of such claims may be entitled effected by the Indemnifying Party without the Indemnified Party’s consent (not to be unreasonably withheld or delayed) unless (A) there is no finding or admission of any violation of Laws or any violation of the rights of any Person and no effect on any other claims that may be made against the Indemnified Party, and (B) the primary relief provided is monetary damages that are paid in full by the Indemnifying Party and (z) the Indemnified Party will have no liability with respect to any compromise or settlement of such claims effected without its consent. If timely notice is given to an Indemnifying Party of the commencement of any Third-Party Claim and the Indemnifying Party does not, within ten (10) business days after the Indemnified Party’s notice is given, give notice to the Indemnified Party of its election to assume and control the defense of such Third Third-Party Claim, the Indemnifying Party will not admit any liability with respect thereto but will be bound by any final determination made by any Governmental Body in respect thereof. The Indemnified Party will not agree to or make any compromise or settlement of any Third-Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at without the Indemnifying Party’s expense. In consent (not to be unreasonably withheld or delayed); provided, however, that in the event that the Indemnifying Party exercises the right for any reason withholds such consent with respect to undertake any such defense against any such Third Third-Party Claim in respect of Fullerton Losses, Ogallala Losses and/or Marengo Losses (as provided abovesuch terms are defined in Exhibit C hereto), the Indemnified Party shall cooperate with shall, at any time thereafter up to and including the Environmental Indemnity Survival Date, and notwithstanding that any such Losses have not yet been incurred, be permitted to make a claim for such Losses incurred (subject to the Indemnifying Party’s continuing consent right) in respect of such Third-Party Claim, without any limitation on the period for recovering such Losses from Seller, subject only to the Applicable Cap and the other limitations set forth herein.
(c) Notwithstanding the foregoing, if an Indemnified Party reasonably determines in good faith that a Third-Party Claim would materially adversely affect it if a judgment is rendered in favor of such defense and make available claimant other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the Indemnified Party may, by written notice to the Indemnifying Party, at assume the Indemnifying Party’s expenseexclusive right to defend, all witnessescompromise, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any settle such Third Third-Party Claim, but the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession will not be bound by any compromise or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party settlement effected without the its prior written consent (which may not be unreasonably withheld or delayed).
(d) The provisions of the Indemnified Partythis Section 9.05 will not apply with respect to any Tax Contests, which will instead be governed by Section 7.03.
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Compass Diversified Holdings)
Procedures Relating to Indemnification. (a) Any party seeking indemnification under Section 6.01 (If a claim or demand is made against an “Indemnified Party”, or an Indemnified Party shall otherwise learn of an assertion, by any Person who is not a party to this Agreement (or an Affiliate thereof) shall promptly give the as to which an Indemnifying Party from whom may be obligated to provide indemnification is being sought pursuant to this Agreement (an “Indemnifying Party”) notice of any matter which a "Third Party Claim"), such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises; provided that the failure to provide such notice shall not release will notify the Indemnifying Party from any in writing, and in reasonable detail, of its obligations under this Article VI 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 is materially shall have been actually prejudiced by as a result of such failure. With respect Thereafter, the Indemnified Party will deliver to any recovery the Indemnifying Party, promptly after the Indemnified Party's receipt thereof, copies of all material notices and documents (including court papers) received or indemnification sought transmitted by the Indemnified Party relating to the Third Party Claim.
(b) If a Third Party Claim is made against an Indemnified Party from Party, the Indemnifying Party will be entitled to participate in or to assume the defense thereof (in either case, at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified 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 Indemnified Party for any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof; PROVIDED, HOWEVER, that if in the Indemnified Party's reasonable judgment a conflict of interest exists in respect of such claim or if the Indemnifying Party shall have assumed responsibility for such claim with any reservations or exceptions, such Indemnified Party will have the right to employ separate counsel reasonably satisfactory to the Indemnifying Party to represent such Indemnified Party and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel for all Indemnified Parties similarly situated) shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party will have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party will control such defense. The Indemnifying Party will be liable for the reasonable fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnified Party copies of all material correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnified Party fully informed of all material developments relating to or in connection with such Third Party Claim (including providing to the Indemnified Party on request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, the Parties will cooperate in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party), which cooperation shall include the retention in accordance with this Agreement and (upon the Indemnifying Party's request) the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(c) 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 Indemnified Party's prior written consent (which consent will not be unreasonably withheld); PROVIDED, HOWEVER, that if the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party 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 Indemnified Party and its Affiliates completely from all Liability in connection with such Third Party Claim; PROVIDED, HOWEVER, that the Indemnified Party may refuse to agree to any such settlement, compromise or discharge (x) that provides for injunctive or other non-monetary relief affecting the Indemnified Party or any of its Affiliates or (y) that, in the reasonable opinion of the Indemnified Party, would otherwise materially adversely affect the Indemnified Party or any of its Affiliates. Whether or not the Indemnifying Party shall have assumed the defense of a Third Party Claim, the Indemnified Party 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 will not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim, if Claim will be asserted by reasonably prompt written notice given by the Indemnified Party to the Indemnifying Party does not notify the from whom such indemnification is sought. The failure by any Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that to so notify the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
(b) If an Indemnified Party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such notice, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided that the failure to provide such notice shall will not release relieve the Indemnifying Party from any of its obligations liability which it may have to such Indemnified Party under this Article VI Agreement, except to the extent that the Indemnifying Party is materially shall have been actually prejudiced by such failure. If .
(e) In the event of payment in full by an Indemnifying Party acknowledges in writing its obligation to indemnify the any Indemnified Party hereunder against in connection with any Losses that may result from such Third Party Claim, then the such Indemnifying Party will be subrogated to and shall be entitled stand in the place of such Indemnified Party as to assume and control the defense any events or circumstances in respect of which such Indemnified Party may have any right or claim relating to such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any claimant or plaintiff asserting such Third Party Claim as provided above, the or against any other Person. Such Indemnified Party shall will cooperate with the such Indemnifying Party in a reasonable manner, and at the cost and expense of such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession prosecuting any subrogated right or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified Partyclaim.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Skyworks Solutions Inc), Asset Purchase Agreement (Conexant Systems Inc)
Procedures Relating to Indemnification. (a) Any 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 seeking indemnification under Section 6.01 (an “Indemnified Party”) shall promptly give the Party from whom indemnification is being sought (an “Indemnifying Party”) notice of any matter which such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim (or an Affiliate thereof) as to the extent known by the Indemnified Party, and containing a reference which an Indemnifying Party may be obligated to the provisions of provide indemnification pursuant to this Agreement in respect of which (a "Third Party Claim"), such right of indemnification is claimed or arises; provided that the failure to provide such notice shall not release Indemnitee will notify the Indemnifying Party from any in writing, and in reasonable detail, of its obligations under this Article VI 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 is materially shall have been actually prejudiced by as a result of such failure. With respect Thereafter, the Indemnitee will deliver to any recovery the Indemnifying Party, promptly after the Indemnitee's receipt thereof, copies of all material notices and documents (including court papers) received or indemnification sought transmitted by the Indemnitee relating to the Third Party Claim.
(b) If a Third Party Claim is made against an Indemnified Party from Indemnitee, the Indemnifying Party will be entitled to participate in or to assume the defense thereof (in either case, 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 the Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or if the Indemnifying Party shall have assumed responsibility for such claim with any reservations or exceptions, such Indemnitee will have the right to employ separate counsel reasonably satisfactory to the Indemnifying Party to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel for all Indemnitees similarly situated) shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee will have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party will control such defense. The Indemnifying Party will 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. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all material 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 reasonable request updates and summaries as to the status thereof). If the Indemnifying Party chooses to defend a Third Party Claim, the parties hereto will cooperate in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party), which cooperation shall include the retention in accordance with this Agreement and (upon the Indemnifying Party's request) the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(c) 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 (which consent will not be unreasonably withheld); provided, that if the Indemnifying Party assumes the defense of any Third Party 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 Indemnifiable Losses in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee and its Affiliates completely from all Liability in connection with such Third Party Claim; provided, however, that the Indemnitee may refuse to agree to any such settlement, compromise or discharge (x) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (y) that, in the reasonable opinion of the Indemnitee, would otherwise materially adversely affect the Indemnitee or any of its Affiliates. Whether or not the Indemnifying Party shall have assumed the defense of a Third Party Claim, the Indemnitee 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 will not be unreasonably withheld).
(d) Any claim on account of Indemnifiable Losses which does not involve a Third Party Claim, if Claim will be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party does not from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
(b) If an Indemnified Party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such notice, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided that the failure to provide such notice shall will not release relieve the Indemnifying Party from any of its obligations liability which it may have to such Indemnitee under this Article VI Agreement, except to the extent that the Indemnifying Party is materially shall have been actually prejudiced by such failure. If .
(e) In the event of payment in full by an Indemnifying Party acknowledges to any Indemnitee in writing its obligation to indemnify the Indemnified Party hereunder against connection with any Losses that may result from such Third Party Claim, then the such Indemnifying Party will be subrogated to and shall be entitled stand in the place of such Indemnitee as to assume and control the defense any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any claimant or plaintiff asserting such Third Party Claim as provided above, the Indemnified Party shall or against any other Person. Such Indemnitee will cooperate with the such Indemnifying Party in a reasonable manner, and at the cost and expense of such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession prosecuting any subrogated right or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified Partyclaim.
Appears in 2 contracts
Sources: Distribution Agreement (Mindspeed Technologies Inc), Distribution Agreement (Mindspeed Technologies Inc)
Procedures Relating to Indemnification. (a) Any party seeking In order for an Indemnified Party to be entitled to any indemnification provided for under Section 6.01 this Article 11 in respect of, arising out of or involving a claim or demand made by any Person (an other than a Party or Affiliate thereof) against the Indemnified Party (each, a “Indemnified PartyThird-Party Claim”) shall promptly give the Party from whom indemnification is being sought (an “Indemnifying Party”) notice of any matter which ), such Indemnified Party has determined has given or would must notify the indemnifying Party in writing, and in reasonable detail, of the Third-Party Claim as promptly as reasonably be expected practicable after receipt by such Indemnified Party of written notice of the Third-Party Claim, except that failure to give rise to a right of such notification will not affect the indemnification under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI hereunder except to the extent the Indemnifying indemnifying Party is will have been actually and materially prejudiced by as a result of such failure. With respect to any recovery or indemnification sought by an The Indemnified Party from shall deliver to the Indemnifying Party that does not involve a Third indemnifying Party, within five (5) Business Days after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the indemnified party relating to the Third-Party Claim, if the Indemnifying Party does not notify the Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
(b) If a Third-Party Claim is made against an Indemnified Party, the indemnifying Party will be entitled to participate in the defense thereof (and to employ counsel, at its own expense, separate from the Indemnified Party’s counsel) and, if it so chooses, to assume the defense of any such claim that exclusively involves civil monetary damages thereof with counsel selected by the indemnifying Party and reasonably satisfactory to the Indemnified Party. Notwithstanding the foregoing, the indemnifying Party shall receive notice not be entitled to assume the defense of (i) any claim Third-Party Claim for equitable or demand asserted by a third party injunctive relief, (eachii) any Third-Party Claim that would impose criminal liability or criminal damages or (iii) any Third-Party Claim that involves any material customer, a “Third Party Claim”) against it material supplier or which may give rise to a claim for Loss under this Article VI, within thirty (30) days material distributor of the receipt of such noticeIndemnified Party, and the Indemnified Party shall give have the Indemnifying Party notice right to defend, at the expense of the indemnifying Party, any such Third Third-Party Claim; provided that . Should the failure to provide such notice shall not release the Indemnifying indemnifying Party from any of its obligations under this Article VI except to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then the Indemnifying Party shall be entitled so elect to assume and control the defense of such Third a Third-Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so in accordance with this Section 11.04, the - 72 - indemnifying Party will not be liable to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of for legal expenses subsequently incurred by the Indemnified Party in its sole and absolute discretion for connection with the same counsel to represent both defense thereof, unless the Third-Party Claim involves potential conflicts of interest between the Indemnified Party and the Indemnifying indemnifying Party, then . If the Indemnified indemnifying Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any assumes such defense against any such Third Party Claim as provided abovedefense, the Indemnified Party shall cooperate with will have the Indemnifying Party right to participate in such the defense thereof and make available to employ counsel, at its own expense (except as provided in the Indemnifying immediately preceding sentence), separate from the counsel employed by the indemnifying Party, at it being understood that the Indemnifying Party’s expenseindemnifying Party will control such defense. To the extent the Third-Party Claim is a claim that the indemnifying Party is ultimately responsible for under this Article 11, all witnesses, pertinent records, materials the indemnifying Party will be liable for the fees and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required expenses of counsel employed by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting for any period during which the indemnifying Party has not assumed the defense against thereof. If the indemnifying Party chooses to defend any Third-Party Claim, all the Parties shall cooperate in the defense or prosecution thereof. Such cooperation will include the retention and (upon the indemnifying Party’s request) the provision to the indemnifying Party of records and information that are reasonably relevant to such Third Third-Party Claim, and the use of commercially reasonable efforts to make employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying Party has assumed the defense of a Third-Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in will not admit any liability with respect to, or settle, compromise or discharge, such defense and make available to Third-Party Claim without the Indemnified Party, at the Indemnifying indemnifying Party’s expenseprior written consent (which consent will not be unreasonably withheld). The indemnifying Party may pay, all such witnesses, records, materials and information in the Indemnifying Party’s possession settle or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third compromise a Third-Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified Party, so long as such settlement (A) includes (i) an unconditional release of the Indemnified Party from all liability in respect of such Third-Party Claim, (ii) does not subject the Indemnified Party to any injunctive relief or other equitable remedy, (iii) does not include a statement or admission of fault, culpability or failure to act by or on behalf of any Indemnified Party and (B) only provides for the payment of monetary damages for which the Indemnified Party will receive indemnification under this Article 11.
(c) If any Indemnified Party desires to assert any claim for indemnification provided for under this Article 11 other than a claim in respect of, arising out of or involving a Third-Party Claim, such Indemnified Party shall notify the indemnifying Party in writing, and in reasonable detail (taking into account the information then available to such Indemnified Party), of such claim promptly after becoming aware of the existence of such claim, except that the failure of an Indemnified Party to notify the indemnifying Party will relieve the indemnifying Party from its obligation to indemnify only to the extent that the indemnifying Party is actually and materially prejudiced as a result of such failure.
Appears in 1 contract
Procedures Relating to Indemnification. (a) Any party seeking indemnification under Section 6.01 In order for a Buyer Indemnitee or a Seller Indemnitee (an such Buyer Indemnitee or Seller Indemnitee, the “Indemnified Party”) to be entitled to indemnification under this Agreement in respect of a claim or demand (a “Third-Party Claim”) made by any Person, other than a Party or Affiliate thereof, against the Indemnified Party, such Indemnified Party shall promptly give notify, as applicable, the Party from whom indemnification that is being sought required to provide indemnity hereunder (an in such context, the “Indemnifying Party”) notice of any matter which such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis writing of the claim to the extent known Third Party Claim after receipt by the Indemnified Party, and containing a reference to the provisions Party of this Agreement in respect of which such right of indemnification is claimed or ariseswritten communication alleging any Third Party Claim; provided that the failure to provide give such notice notification on a timely basis shall not release affect the indemnification obligations of the Indemnifying Party from any of its obligations under this Article VI provided hereunder except to the extent the Indemnifying Party is shall have been actually and materially prejudiced by as a result of such failure. With respect Thereafter, the Indemnified Party shall promptly deliver to any recovery or indemnification sought the Indemnifying Party after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by an the Indemnified Party from the Indemnifying Party that does not involve a Person making the Third Party Claim, if the Indemnifying Party does not notify the Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
(b) If a Third Party Claim is made against an Indemnified Party shall receive notice of any claim or demand asserted by a third party (eachParty, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such notice, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then the Indemnifying Party shall be entitled to participate in the defense thereof and, if it so chooses, to assume and control the defense thereof with recognized counsel selected by the Indemnifying Party and approved by the Indemnified Party (such approval not to be unreasonably withheld, conditioned or delayed), so long as the requirements of such Third this Section 5.04(b) remain true: (i) the Indemnifying Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to notifies the Indemnified Party within fifteen (15) days after the Indemnified Party has delivered written notice of a Third Party Claim to the Indemnifying Party that the Indemnifying Party is assuming the defense of such Third Party Claim; and (ii) the Indemnifying Party conducts the defense of the receipt of such notice from Third Party Claim in a reasonably active and diligent manner; provided that the Indemnifying Party shall not be entitled to assume the defense (unless otherwise agreed to in writing by the Indemnified Party; provided ) if the Third Party Claim relates to any criminal proceeding, action, indictment, allegation or investigation. Notwithstanding the foregoing, a Indemnifying Party by assuming the defense of a Third Party Claim acknowledges the Indemnified Party’s right to reimbursement and indemnification hereunder for Losses with respect to such Third Party Claim. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party shall not be liable to the Indemnified Party for legal expenses incurred by the Indemnified Party in connection with the defense thereof (i) the employment of separate counsel shall have been authorized in writing by the Indemnifying Party in connection with the defense of such Third Party Claim or (ii) the Indemnified Party’s counsel shall have advised the Indemnified Party in writing, with a copy delivered to the Indemnifying Party, that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate under applicable standards of professional conduct to have common counsel, and, in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Partyany case, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises shall only be required to pay for one (1) counsel. If the right to undertake any Indemnifying Party assumes such defense against any such Third Party Claim as provided abovedefense, the Indemnified Party shall have the right to participate in the defense thereof and to employ counsel, at the Indemnified Party’s expense, separate from the counsel employed by the Indemnifying Party, it being understood, however, that the Indemnifying Party shall control such defense (including any settlement with respect thereto); provided, however, that the Indemnifying Party shall obtain the prior written consent of the Indemnified Party (which shall not be unreasonably withheld, conditioned or delayed) before entering into any settlement, compromise, admission or acknowledgement of the validity of the Third Party Claim if such resolution does not include an unconditional provision whereby the plaintiff or claimant in the matter releases the Indemnified Party and all of its Affiliates and representatives from all liability with respect thereto. If the Indemnifying Party chooses to defend any Third Party Claim, then all the Parties shall cooperate with in the defense or prosecution of such Third Party Claim, including by retaining and (upon the Indemnifying Party’s request) providing to the Indemnifying Party all records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any materials provided hereunder; provided, that such cooperation will not unduly disrupt the operations of the business of such Indemnified Party or any of its Affiliates or cause such Indemnified Party to waive any statutory or common law privileges, breach any confidentiality obligations owed to third parties or otherwise cause any confidential information of such Indemnified Party or any of its Affiliates to become public to any greater extent than if the Indemnified Party (and the parties agree to enter into a customary “common defense” or similar agreement if necessary). For the avoidance of doubt, if, an Indemnifying Party assumes the defense of a Third Party Claim pursuant to this Section 5.04 as the Indemnifying Party, all costs and expenses incurred by the Indemnifying Party in connection with the defense of such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required Third Party Claim shall be borne by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly Whether or indirectly, conducting the defense against any such Third Party Claim, not the Indemnifying Party shall cooperate with have assumed the defense of a Third Party Claim as the Indemnifying Party, neither the Indemnified Party in such defense and make available to the Indemnified Partynor any of its Affiliates shall settle, at the Indemnifying Party’s expensecompromise or discharge, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such any Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnifying Party (which shall not be unreasonably withheld, conditioned or delayed), except with respect to any Third Party Claim the subject matter of which relates to the ongoing business of the Indemnified Party or any of its Affiliates, which Third Party Claim, if decided against such Indemnified Party, would materially affect the ongoing business or reputation of such Indemnified Party or any of its Affiliates, which Third Party Claims the Indemnified Party will be entitled to settle in its reasonable discretion. Notwithstanding anything to the contrary herein, in connection with the defense of the matters set forth in Sections 5.02(a)(viii) and 5.02(a)(ix) by the Companies, Buyer agrees to take, and to cause the applicable Companies to take, such actions as are reasonably directed by the Sellers’ Representative.
(c) In any case in which a Buyer Indemnitee seeks indemnification under this Agreement not arising out of a Third Party Claim, the Buyer Indemnitee shall notify Sellers reasonably promptly in writing of any Losses that such Buyer Indemnitee claims are subject to indemnification under the terms of this Agreement. The notice shall describe the indemnification sought in reasonable detail to the extent known, and shall indicate the amount (as reasonably estimated, if necessary, and if then estimable) of the Loss that has been or may be suffered. Subject to the limitations set forth in Section 5.02(c) and the provisions of this Section 5.04, the failure of such Buyer Indemnitee to exercise promptness in such notification shall not amount to a waiver of such claim unless and only to the extent that the resulting delay actually adversely prejudices the position of the Sellers with respect to such claim.
(d) For the avoidance of doubt, Section 4.01(j) and not this Section 5.04 shall apply to any Seller Tax Contest.
Appears in 1 contract
Sources: Purchase Agreement (Adams Resources & Energy, Inc.)
Procedures Relating to Indemnification. (a) Any Promptly after receipt by a party seeking indemnification indemnified under Section 6.01 (an “Indemnified Party”) shall promptly give the Party from whom indemnification is being sought (an “Indemnifying Party”) 7 or 8 above of written notice of any matter which such Indemnified Party has determined has given loss, claim, damage or would reasonably be expected to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement liability in respect of which indemnity may be sought by it hereunder, such right of indemnification indemnified party will, if a claim is claimed or arises; provided that to be made against an indemnifying party, notify the failure indemnifying party thereof in writing, but the 10 omission so to provide such notice shall notify the indemnifying party will not release relieve the Indemnifying Party indemnifying party from any liability (otherwise than under Section 7 or 8 hereof, as the case may be) which it may have to the indemnified party. Thereafter, the indemnified party and the indemnifying party shall consult, to the extent appropriate, with a view to minimizing the cost to the indemnifying party of its obligations under this Article VI except to the extent the Indemnifying Party is materially prejudiced by such failurehereunder. With respect to In case any recovery or indemnification sought by an Indemnified Party from the Indemnifying Party that does not involve a Third Party Claim, if the Indemnifying Party does not notify the Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
(b) If an Indemnified Party shall receive indemnified party receives written notice of any claim loss, claim, damage or demand asserted liability in respect of which indemnity may be sought by a third it hereunder and it notifies the indemnifying party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such noticethereof, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided that the failure indemnifying party will be entitled to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except participate therein, and, to the extent that it may elect by written notice delivered to the Indemnifying Party is materially prejudiced by such failure. If indemnified party promptly after receiving the Indemnifying Party acknowledges in writing its obligation to indemnify aforesaid notice from the Indemnified Party hereunder against any Losses that may result from such Third Party Claimindemnified party, then the Indemnifying Party shall be entitled to assume the defense thereof with counsel reasonably satisfactory to the indemnified party; provided, -------- however, that if the parties against which any loss, claim, damage or liability ------- arises include both the indemnified party and control the indemnifying party and the indemnified party shall have reasonably concluded that the defenses available to it create a conflict of interest for the counsel selected by the indemnifying party under the code of professional responsibility applicable to such counsel, the indemnified party shall have the right to select one separate counsel to assume such legal defenses and otherwise to participate in the defenses of such loss, claim, damage or liability on behalf of the indemnified party. Upon receipt by the indemnified party of notice from the indemnifying party of its election so to assume the defense of such Third Party Claim at its expense loss, claim, damage or liability and through approval by the indemnified party of counsel, the indemnifying party shall not be liable to the indemnified party under Section 7 or 8 hereof, as the case may be, for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof unless (i) the indemnified party shall have employed such counsel in connection with the assumption of its choice if it gives legal defenses in accordance with the proviso to the next preceding sentence, (ii) the indemnifying party shall not have employed and continued to employ counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of its intention to do so to the Indemnified Party within fifteen (15) days commencement of the receipt of such notice action, (iii) the indemnified party shall have reasonably concluded that there may be legal defenses which are available to it which are different from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a and conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make those available to the Indemnifying Partyindemnifying party, or (iv) the indemnifying party shall have authorized in writing the employment of separate counsel for the indemnified party at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in expense of the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Partyindemnifying party. No such Third Party Claim may be settled by the Indemnifying Party indemnifying party shall, without the prior written consent of the Indemnified Partyindemnified party, effect any settlement of any pending or threatened action in respect of which the indemnified party is or is entitled or subject to be a party and the indemnified party is entitled to indemnity hereunder unless such settlement (i) includes an unconditional release of the indemnified party from all liability on any claims that are the subject matter of such action and (ii) does not require any admission or acknowledgement of culpability or wrongdoing on behalf of an indemnified party. No indemnifying party shall be liable for any settlement, compromise or consent to the entry of any order adjudicating or otherwise disposing of any loss, claim, damage or liability effected without its written consent. If the indemnification provided for under Section 7 or 8 above is unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages or liabilities (or actions in respect thereof) that would otherwise have been indemnified under the terms of such indemnity, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other from the offering of the Securities. If, however, the 11 allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and the Underwriters on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equity considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company bear to the total compensation received by the Underwriters in respect of underwriting discounts and commissions as set forth in the table on the cover page of the Prospectus. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or the Underwriters on the other and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contributions pursuant to this section were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this section. The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this section shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this section, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
Appears in 1 contract
Sources: Underwriting Agreement (Mirant Corp)
Procedures Relating to Indemnification. (a) Any party seeking indemnification under Section 6.01 In the event of a Claim or demand made by any non-Affiliated Person against a Parent Indemnified Party (an a “Third-Party Claim”), such Parent Indemnified Party”) Party shall promptly give notify the Party from whom indemnification is being sought Representative (an on behalf of the Stockholders, Vested Optionholders and Warrant Holders (the “Indemnifying PartySecurityholders”)) in writing of the Third-Party Claim promptly (and in no event later than ten (10) Business Days) following receipt by such Parent Indemnified Party of notice of any matter which such Indemnified the Third-Party has determined has given or would reasonably be expected Claim; provided, that failure to give rise to such notification on a right of indemnification under this Agreement stating in reasonable detail the factual timely basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises; provided that the failure to provide such notice shall not release affect the Indemnifying Party from any of its obligations under this Article VI indemnification provided hereunder except to the extent the Indemnifying Party is materially Securityholders shall have been actually prejudiced by as a result of such failure. With respect to any recovery or indemnification sought by an Thereafter, the Parent Indemnified Party from shall deliver to the Indemnifying Representative promptly after the Parent Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Parent Indemnified Party that does not involve a Third relating to the Third-Party Claim, if the Indemnifying Party does not notify the Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
(b) If an a Third-Party Claim is made against a Parent Indemnified Party shall receive notice in an amount which is less than the amount of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such noticeIndemnification Escrow Funds then available, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then the Indemnifying Party Representative shall be entitled to, at the Indemnifying Securityholders’ expense, participate in the defense thereof and, if it so chooses, to assume the defense thereof with counsel selected by the Representative and control reasonably satisfactory to the Parent Indemnified Party; provided, however, that the Representative may not assume and conduct the defense of such Third Third-Party Claim at its expense and through counsel if (i) a material part of such Third-Party Claim seeks equitable relief (other than equitable Claims that are ancillary to a Claim for monetary damages) or if (ii) such Third-Party Claim relates to or arises in connection with any criminal Claim, indictment, allegation or investigation of Parent or any of its choice if it gives notice of Subsidiaries, including the Surviving Corporation and its intention Subsidiaries, by a Governmental Body. Notwithstanding the foregoing, the Representative shall continue to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the assert any limitation on any Claims made by any Parent Indemnified Party determines counsel is required, at contained in Sections 11.01 and 11.02. Should the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right Representative so elect to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting assume the defense against any such Third of a Third-Party Claim, the Indemnifying Representative shall not be liable to the Parent Indemnified Party shall cooperate with for legal expenses subsequently incurred by the Parent Indemnified Party in connection with the defense thereof. If the Representative assumes such defense, the Parent Indemnified Party shall have the right to participate in the defense thereof and make available to the Indemnified Partyemploy counsel, at its own expense, separate from the counsel employed by the Representative, it being understood, however, that the Representative shall control such defense. The Representative (on behalf of the Indemnifying Party’s expense, all such witnesses, records, materials Securityholders) shall be liable for the fees and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required expenses of counsel employed by the Parent Indemnified Party. No Party for any period during which the Representative has not assumed the defense thereof, if and only if it is ultimately determined that such Third Third-Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified Partyarose out of, resulted from, related to or was in connection with a matter listed in Sections 11.01 and 11.
Appears in 1 contract
Procedures Relating to Indemnification. (a) Any In order for a party seeking indemnification under Section 6.01 (an the “Indemnified Party”) shall promptly give to be entitled to any indemnification provided for under this Agreement in respect of a claim or demand made by any Person other than a party to this Agreement (a “Third Party”) against the Indemnified Party from whom indemnification is being sought (an a “Third-Party Claim”), such Indemnified Party must notify the indemnifying party (the “Indemnifying Party”) notice in writing, and in reasonable detail, of any matter which the Third-Party Claim as promptly as reasonably possible after receipt, but in no event later than three calendar days after receipt, by such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis notice of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arisesThird-Party Claim; provided that the failure to provide give such notice shall notification on a timely basis will not release affect the Indemnifying Party from any of its obligations under this Article VI indemnification provided hereunder except to the extent the Indemnifying Party is materially will have been actually prejudiced by as a result of such failure. With respect to any recovery or indemnification sought by an Indemnified Party from the Indemnifying Party that does not involve a Third Party ClaimThereafter, if the Indemnifying Party does not notify the Indemnified Party will deliver to the Indemnifying Party, within thirty five (305) business days from its after the Indemnified Party’s receipt thereof, copies of the notice from all notices and documents (including court papers) received by the Indemnified Party that relating to the Indemnifying Third-Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claimClaim.
(b) If a Third-Party Claim is made against an Indemnified Party shall receive notice of any claim or demand asserted by a third party (eachParty, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such notice, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided that will be entitled to participate in the failure defense thereof and, if it so chooses, to provide such notice shall not release assume the defense thereof with counsel selected by the Indemnifying Party from any of its obligations under this Article VI except and reasonably satisfactory to the extent that Indemnified Party. Notwithstanding the foregoing, the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party acknowledges in writing its obligation will continue to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then the Indemnifying Party shall be entitled to assert any limitation on any claims contained in this Article VII. Should an Indemnifying Party so elect to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Third-Party Claim, the Indemnifying Party shall cooperate with will not be liable to the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof. If the Indemnifying Party assumes such defense, the Indemnified Party will have the right to participate in the defense thereof and make available to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood, however, that the Indemnifying Party will control such defense. Subject to the Indemnified PartyParty providing timely notice pursuant to Section 7.05(a), at the Indemnifying Party will be liable for the fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof. If the Indemnifying Party chooses to defend any Third-Party Claim, all the parties hereto will cooperate in the defense or prosecution of such Third-Party Claim. Such cooperation will include the retention and (upon the Indemnifying Party’s expense, all such witnesses, records, materials request) the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third-Party Claim and making employees and other representatives and advisors available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Notwithstanding anything in this Section 7.05(b) to the contrary, Seller may elect to control the defense of any Third-Party Claim with counsel selected by Seller whether Seller is the Indemnified Party or the Indemnifying Party’s possession or under , and to the Indemnifying Party’s control relating thereto as extent Buyer is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party in that case, Buyer will pay for or reimburse Seller’s costs in connection with such defense. Whether or not Seller will have assumed the defense of a Third-Party Claim, neither Buyer nor any of its Affiliates will admit any liability with respect to, or settle, compromise or discharge, any Third-Party Claim without the prior written consent of Seller.
(c) Seller assumes the Indemnified Partydefense of the Outstanding Litigation. The Buyer Indemnitees have the right to participate in the defense thereof and to employ counsel, at their own expense, separate from the counsel employed by Seller, it being understood, however, that Seller will control such defense. Neither Buyer, the Company nor any of their Affiliates will admit any liability with respect to, or settle, compromise or discharge, the Outstanding Litigation without the prior written consent of Seller which shall not be unreasonably withheld, conditioned or delayed. Additionally, neither Seller nor its Affiliates will admit any liability with respect to, or settle, compromise or discharge, the Outstanding Litigation for the periods arising on or after the Closing Date without the prior written consent of Buyer which shall not be unreasonably withheld, conditioned or delayed. A party will not be deemed to be unreasonably withholding, conditioning or delaying its consent of a settlement, compromise or discharge of the Outstanding Litigation to the extent such settlement, compromise or discharge does not fully include a full release of such party from all claims related to the Outstanding Litigation, or the amount required to be paid by such party in connection with such settlement, compromise or discharge exceeds the amount such party is willing to pay.
(d) During the period between the Closing Date and the date that is twelve (12) months following the Closing Date (the “Post-Closing Period”), neither Buyer nor any other Buyer Indemnitee may, directly or indirectly, initiate contact with, discuss with, or provide any other communication (in any form or format) to the Mineral Owner or any employees, officers, directors, managers, representatives, or agents thereof with respect to any matter related to the Company or any activities at the Owned Real Property or the Leased Real Property, including, without limitation, the Mineral Owner Property. In the event that during the Post-Closing Period the Mineral Owner or any employees, officers, directors, managers, representatives, or agents thereof initiate contact with any Buyer Indemnitee, Buyer shall not respond to such contact and shall provide Seller notice of such contact within three (3) calendar days of receipt of such contact and Seller and Buyer shall mutually agree on the content of the response to the Mineral Owner prior to any such response to the Mineral Owner or any employees, officers, directors, managers, representatives, or agents thereof; provided that if Seller and Buyer are unable to agree on the content of such response within three (3) calendar days after such notice has been given to Seller, Buyer shall be permitted to respond to Mineral Owner or any employees, officers, directors, manager, representative, or agent thereof. In the event that during the six year (6) period after the Post Closing Period, the Mineral Owner or any employees, officers, directors, managers, representatives, or agents thereof communicates with any Buyer Indemnitee regarding the Company’s activities at the Mineral Owner Property on or prior to the Closing Date, Buyer shall provide Seller notice of each such communication within three (3) calendar days of receipt of such communication.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Smart Sand, Inc.)
Procedures Relating to Indemnification. (a) Any 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 seeking indemnification under Section 6.01 (an “Indemnified Party”) shall promptly give the Party from whom indemnification is being sought (an “Indemnifying Party”) notice of any matter which such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim (or an Affiliate thereof) as to the extent known by the Indemnified Party, and containing a reference which an Indemnifying Party may be obligated to the provisions of provide indemnification pursuant to this Agreement in respect of which (a "Third Party Claim"), such right of indemnification is claimed or arises; provided that the failure to provide such notice shall not release Indemnitee will notify the Indemnifying Party from any in writing, and in reasonable detail, of its obligations under this Article VI 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 is materially shall have been actually prejudiced by as a result of such failure. With respect Thereafter, the Indemnitee will deliver to any recovery or indemnification sought by an Indemnified Party from the Indemnifying Party that does not involve a Party, promptly after the Indemnitee's receipt thereof, copies of all material notices and documents (including court papers) received or transmitted by the Indemnitee relating to the Third Party Claim, if the Indemnifying Party does not notify the Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
(b) If an Indemnified Party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party Claim”) Claim is made against it or which may give rise to a claim for Loss under this Article VIan Indemnitee, within thirty (30) days of the receipt of such notice, the Indemnified Party shall give the Indemnifying Party notice will be entitled to participate in or to assume the defense thereof (in either case, at the expense of such Third Party Claim; provided that the failure to provide such notice shall not release Indemnifying Party) with counsel selected by the Indemnifying Party from any of its obligations under this Article VI except and reasonably satisfactory to the extent that Indemnitee. Should the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then the Indemnifying Party shall be entitled so elect to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the Indemnified defense thereof; provided, that if in the Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or if the Indemnifying Party in shall have assumed responsibility for such defense and make available claim with any reservations or exceptions, such Indemnitee will have the right to employ separate counsel reasonably satisfactory to the Indemnified Indemnifying Party to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel for all Indemnitees similarly situated) shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee will have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party’s expense, all such witnesses, records, materials and information in it being understood that the Indemnifying Party’s possession or under Party will control such defense. The Indemnifying Party will be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party’s control Party has failed to assume the defense thereof. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all material correspondence and documents relating thereto as is reasonably required by the Indemnified Party. No to or in connection with such Third Party Claim may be settled by 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). If the Indemnifying Party without chooses to defend a Third Party Claim, the prior written consent of parties hereto will cooperate in the Indemnified Party.defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of
Appears in 1 contract
Procedures Relating to Indemnification. (ai) Any party seeking indemnification All claims under -------------------------------------- Section 6.01 9(b) or 9(c) other than Third Party Claims (an “Indemnified Party”as defined in Section 9(f)(ii)) shall promptly give be governed by Section 9f(iii). All Tax Claims (as defined in Section 9(f)(iv)) shall be governed by Section 9f(v).
(ii) In order for a party (the Party from whom "indemnified party") to be entitled to any indemnification is being sought (an “Indemnifying Party”) notice of any matter which such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification provided for under this Agreement stating (other than under Section 9(a)) in respect of, arising out of or involving a claim or demand made by any person against the indemnified party (a "Third Party Claim"), such indemnified party must notify the indemnifying party in writing, and in reasonable detail the factual basis detail, of the claim to Third Party Claim within 10 business days after receipt by such indemnified party of written notice of the extent known by the Indemnified PartyThird Party Claim; provided, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises; provided however, that the failure to provide give such notice notification shall not release affect the Indemnifying Party from any of its obligations under this Article VI - - - -------- ------- indemnification provided hereunder except to the extent the Indemnifying indemnifying party shall have been actually prejudiced as a result of such failure (except that the indemnifying party shall not be liable for any expenses incurred during the period in which the indemnified party failed to give such notice). Thereafter, the indemnified party shall deliver to the indemnifying party, within 5 business days after the indemnified party's receipt thereof, copies of all notices and documents (including court papers) received by the indemnified party relating to the Third Party Claim. If a Third Party Claim is materially prejudiced made against an indemnified party, the indemnifying party shall be entitled to participate in the defense thereof and, if it so chooses and acknowledges its obligation to indemnify the indemnified party therefor, to assume the defense thereof with counsel selected by the indemnifying party; provided that such failurecounsel is not reasonably objected to by -------- the indemnified party. With Should the indemnifying party so elect to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party for legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of counsel employed by the indemnified party for any period during which the indemnifying party has failed to assume the defense thereof (other than during the period prior to the time the indemnified party shall have given notice of the Third Party Claim as provided above). If the indemnifying party so elects to assume the defense of any Third Party Claim, all of the indemnified parties shall cooperate with the indemnifying party in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the indemnifying party's request) the provision to the indemnifying party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party shall have assumed the defense of a Third Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the indemnifying party's prior written consent (which consent shall not be unreasonably withheld). If the indemnifying party shall have assumed the defense of a Third Party Claim, the indemnified party shall agree to any recovery settlement, compromise or discharge of a Third Party Claim which the indemnifying party may recommend and which by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim, which releases the indemnifying party completely in connection with such Third Party Claim and which would not otherwise adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of counsel incurred by the indemnified party 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 indemnified party which the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damages. The indemnification sought required by an Indemnified Party from Section 9(b) and 9(c) shall be made by periodic payments of the Indemnifying Party amount thereof during the course of the investigation or defense, as and when bills are received or loss, liability, claim, damage or expense is incurred.
(iii) In the event any indemnified party should have a claim against any indemnifying party under Section 9(b) or 9(c) that does not involve a Third Party Claim, if the Indemnifying Party does not notify the Indemnified Party within thirty (30) days Claim being asserted against or sought to be collected from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claimindemnified party, the Indemnifying Party indemnified party shall be deemed to have accepted and agreed with such claim.
(b) If an Indemnified Party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such notice, the Indemnified Party shall give the Indemnifying Party deliver notice of such Third Party Claim; provided that claim with reasonable promptness to the indemnifying party. The failure by any indemnified party so to provide such notice notify the indemnifying party shall not release relieve the Indemnifying Party indemnifying party from any of its obligations liability which it may have to such indemnified party under this Article VI Section 9(b) or 9(c), except to the extent that the Indemnifying Party is indemnifying party demonstrates that it has been materially prejudiced by such failure. If the Indemnifying Party acknowledges in writing indemnifying party does not notify the indemnified party within 90 calendar days following its obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then the Indemnifying Party shall be entitled to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from that the Indemnified Party; provided that that if there exists indemnifying party disputes its liability to the indemnified party under Section 9(b) or is reasonably likely 9(c), such claim specified by the indemnified party in such notice shall be conclusively deemed a liability of the indemnifying party under Section 9(b) or 9(c) and the indemnifying party shall pay the amount of such liability to exist a conflict of interest that would make it inappropriate the indemnified party on demand or, in the judgment case of any notice in which the amount of the Indemnified Party in 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 sole and absolute discretion for the same counsel liability with respect to represent both the Indemnified Party and the Indemnifying Partysuch claim, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party indemnifying party and the indemnified party shall cooperate with the Indemnifying Party proceed in good faith to negotiate a resolution of such defense and make available dispute and, if not resolved through negotiations, such dispute shall be resolved by litigation in an appropriate court of competent jurisdiction.
(iv) If a claim shall be made by any taxing authority, which, if successful, might result in an indemnity payment to the Indemnifying PartyBuyer, at one of its affiliates or any of their respective directors, officers, employees, stockholders, agents or representatives pursuant to Section 9(a), then the Indemnifying Party’s expenseParent or the Buyer shall give notice to the Representatives in writing of such claim (a "Tax Claim") and of any counterclaim the Buyer proposes to assert. With respect to any Tax Claim relating to a taxable period ending on or prior to the Closing Date, the Representatives (on behalf of themselves and each of the other Sellers) shall control all witnessesproceedings and may make all decisions taken in connection with such Tax Claim (including selection of counsel) and, pertinent recordswithout limiting the foregoing, materials may in their sole discretion pursue or forego any and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarlyall administrative appeals, proceedings, hearings and conferences with any taxing authority with respect thereto, and may, in their sole discretion, either pay the event Tax and ▇▇▇ for a refund where applicable law permits such refund suits or contest the Indemnified Party is, directly Tax Claim in any permissible manner. The Representatives (on behalf of themselves and each of the other Sellers) and the Buyer shall jointly control and participate in all proceedings taken in connection with any Tax Claim relating to Taxes of the Company or indirectly, conducting its Subsidiaries for a Straddle Period. Neither the defense against Representatives nor the Buyer shall settle any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available Tax Claim relating to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party a Straddle Period without the prior written consent of the Indemnified Partyother. The Buyer shall control all proceedings with respect to any Tax Claim relating to a taxable period beginning after the Closing Date. None of the Sellers shall have any right to participate in the conduct of any such proceeding. The Buyer shall, and shall cause the Company, its Subsidiaries and each of their affiliates, on the one hand, to, and each Seller and its affiliates, on the other hand, shall, reasonably cooperate in contesting any Tax Claim, which cooperation shall include the retention and, upon request, the provision to the requesting person of records and information which are reasonably relevant to such Tax Claim, and making employees available on a mutually convenient basis to provide additional information or explanation of any material provided hereunder or to testify at proceedings relating to such Tax Claim.
Appears in 1 contract
Sources: Annual Report
Procedures Relating to Indemnification. (a) Any party seeking In order for an Indemnitee to be entitled to any indemnification provided for under Section 6.01 (an “Indemnified Party”) shall promptly give the Party from whom indemnification is being sought (an “Indemnifying Party”) notice of any matter which such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement in respect of, arising out of which or involving a claim made by any person who is not an Indemnitee against such right Indemnitee (a "Third Party Claim"), such Indemnitee must notify the party who may become obligated to provide indemnification hereunder (the "Indemnifying Party") in writing, and in reasonable detail, of indemnification is claimed or arisesthe Third Party Claim reasonably promptly, and in any event within 10 Business Days after receipt by such Indemnitee of written notice of the Third Party Claim; provided provided, however, that the failure to provide give such notice notification shall not release affect the Indemnifying Party from any of its obligations under this Article VI indemnification provided hereunder except to the extent the Indemnifying Party is shall have been actually and materially prejudiced by as a result of such failure. With ; provided further, however, that with respect to any recovery Third Party Claim for which Newco is the Indemnifying Party, such Indemnifying Party shall be deemed to have received notice with respect to such Third Party Claim by or indemnification sought against the Company or any of its subsidiaries (other than the Newco Companies) for which the Company or any of its subsidiaries (other than the Newco Companies) received notice prior to the Effective Time. After any required notification (if applicable), 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.
(b) If a Third Party Claim is made against an Indemnified Party from Indemnitee, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so chooses, 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 expenses subsequently incurred by the Indemnitee in connection with the defense thereof. If the Indemnifying Party assumes such defense, the Indemnitee shall have the right to participate, at its own expense, in the defense thereof solely to assert any additional defenses and to employ counsel, at its own expense, except as set forth below, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for the reasonable fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has not assumed the defense thereof (other than during any period in which the Indemnitee shall have failed to give notice of the Third Party Claim as provided above). Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall not be liable for the fees and expenses of counsel incurred by the Indemnitee in defending such Third Party Claim, except for the reasonable fees and expenses of counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee) 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 related claim for money damages. If such equitable or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. The indemnification required by Section 2.01 or 2.02, as the case may be, shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or the Indemnifiable Loss is incurred. If the Indemnifying Party chooses to defend or prosecute a Third Party Claim (i) all the parties hereto reasonably necessary or appropriate for such defense or prosecution shall cooperate in the defense or prosecution thereof, which cooperation shall include the retention in accordance with this Agreement and (upon the Indemnifying Party's request) the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, (ii) the Indemnifying Party shall keep the Indemnitee reasonably informed of all significant developments in connection with the defense or prosecution of such Third Party Claim and (iii) the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend (after representing to the Indemnitee that such settlement is reasonably likely to be acceptable to the parties to the Third Party Claim) and which by its terms obligates the Indemnifying Party to pay the full amount of liability in connection with such Third Party Claim; provided, however, that, without the Indemnitee's consent (which consent shall not be unreasonably withheld, conditioned or delayed), the Indemnifying Party shall not consent to entry of any Judgment or enter into any settlement (x) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or its properties or (y) that does not include as an unconditional term thereof the giving by each claimant or plaintiff to such Indemnitee of a release from all liability with respect to such claim; provided further, however, that if the Indemnitee does not consent to any settlement recommended by the Indemnifying Party (after representing to the Indemnitee that such settlement is reasonably likely to be acceptable to the parties to the Third Party Claim) then the Indemnifying Party (1) shall not in any event be obligated to indemnify the Indemnitee, or otherwise be responsible, for any amount in excess of the amount of the settlement so recommended by the Indemnifying Party and (2) shall be entitled to reimbursement of the fees and expenses of counsel incurred by the Indemnifying Party after the date on which the recommendation was made to the Indemnitee in the event the final and unappealable Judgment in such Third Party Claim exceeds the amount of the settlement so recommended. If the Indemnifying Party shall have assumed the defense of a Third Party Claim, the Indemnitee shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent. If the Indemnifying Party does not or is not entitled to assume the defense of a Third Party Claim, the Indemnitee may defend the same in such manner as it may deem appropriate; provided, however, that the Indemnitee shall not admit any liability with respect to, or settle, compromise or discharge such Third-Party Claim without the Indemnifying Party's prior written consent.
(c) In order for an Indemnitee to be entitled to any indemnification provided for under this Agreement in respect of a claim that does not involve a Third Party Claim, if the Indemnitee shall deliver notice of such claim (in reasonably sufficient detail to enable the Indemnifying Party does not notify the Indemnified Party within thirty (30to evaluate such claim) days from its receipt of the notice from the Indemnified Party that with reasonable promptness to the Indemnifying Party disputes Party. The failure by any Indemnitee to give such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
(b) If an Indemnified Party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such notice, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided that the failure to provide such notice notification shall not release affect the Indemnifying Party from any of its obligations under this Article VI indemnification provided hereunder except to the extent that the Indemnifying Party is shall have been actually and materially prejudiced by as a result of such failure. If the Indemnifying Party acknowledges in writing does not notify the Indemnitee within 20 Business Days following its obligation receipt of such notice that the Indemnifying Party disputes its liability with respect to indemnify such claim under Section 2.01 or 2.02, as the Indemnified case may be, the claim shall be conclusively deemed a liability of the Indemnifying Party hereunder against any Losses that under Section 2.01 or 2.02, as the case may result from such Third Party Claimbe, then and the Indemnifying Party shall be entitled to assume and control pay the defense amount of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so liability to the Indemnified Party within fifteen (15) days Indemnitee on demand or, in the case of any notice in which the amount of the receipt claim (or any portion thereof) is estimated, on such later date when the amount of such notice from the Indemnified Party; provided that that if there exists claim (or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expensesuch portion thereof) becomes finally determined. In the event that If the Indemnifying Party exercises the right has timely disputed its liability with respect to undertake any such defense against any such Third Party Claim claim, as provided above, the Indemnified Party shall cooperate with the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such defense dispute and, if not resolved through negotiations, such dispute shall be resolved by litigation in an appropriate court of competent jurisdiction.
(d) Notwithstanding any other provision of this Agreement, Newco acknowledges and make available to the Indemnifying Party, agrees that Newco shall (solely at the Indemnifying Party’s its own cost and expense, all witnesses, pertinent records, materials ) assume and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting continue the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified PartyNewco Litigation and use its reasonable best efforts to defend any Parent Indemnitee and to cause any Parent Indemnitee to be dismissed with prejudice as a party to any Newco Litigation.
Appears in 1 contract
Sources: Post Closing Covenants Agreement (Igen International Inc /De)
Procedures Relating to Indemnification. (a) Any party seeking In order for an Indemnified Person to be entitled to any indemnification provided for under Section 6.01 (an “Indemnified Party”) shall promptly give the Party from whom indemnification is being sought (an “Indemnifying Party”) notice of any matter which such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement in respect of, arising out of which or involving a claim or demand made by any Person against the Indemnified Person (a “Third-Party Claim”), such right Indemnified Person must provide the Indemnifying Person with a Claim Notice regarding the Third-Party Claim promptly and in any event within ten (10) Business Days after receipt by such Indemnified Person of indemnification is claimed or ariseswritten notice of the Third-Party Claim; provided provided, however, that the failure to provide give such notice notification shall not release affect the Indemnifying Party from any of its obligations under this Article VI indemnification provided hereunder except to the extent the Indemnifying Person shall have been actually prejudiced as a result of such failure (except that the Indemnifying Person shall not be liable for any expense incurred during the period in which the Indemnified Person failed to give such notice). Thereafter, the Indemnified Person shall deliver to the Indemnifying Person, within five (5) Business Days after the Indemnified Person’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Person relating to the Third-Party Claim. If a Third-Party Claim is materially prejudiced by such failure. With respect to any recovery or indemnification sought by made against an Indemnified Party from Person, the Indemnifying Person will be entitled to participate in the defense thereof and, if it so chooses, to assume the defense thereof with counsel selected by the Indemnifying Person. If the Third-Party Claim includes allegations for which the Indemnifying Person both would and would not be obligated to indemnify the Indemnified Person, the Indemnifying Person and the Indemnified Person shall in that does not involve case jointly assume the defense thereof. Should the Indemnifying Person so elect to assume the defense of a Third Third-Party Claim, if the Indemnifying Party does Person will not notify be liable to the Indemnified Party within thirty (30) days from its receipt of the notice from Person for legal fees and expenses subsequently incurred by the Indemnified Party that Person in connection with the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
(b) If an Indemnified Party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such notice, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent that the Indemnifying Party is materially prejudiced by such failuredefense thereof. If the Indemnifying Party acknowledges in writing its obligation to indemnify Person assumes such defense, the Indemnified Party hereunder against any Losses that may result from such Third Party ClaimPerson shall have the right, then at its own expense, to participate in the defense thereof and, at its own expense, to employ counsel reasonably acceptable to the Indemnifying Party Person, separate from the counsel employed by the Indemnifying Person, it being understood that the Indemnifying Person shall control such defense. The Indemnifying Person shall be entitled to assume liable for the fees and control expenses of counsel employed by the Indemnified Person for any period during which the Indemnifying Person has not assumed the defense of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen thereof (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate other than during any period in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at Person shall have failed to give notice of the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Third-Party Claim as provided above). If the Indemnifying Person chooses to defend or prosecute any Third-Party Claim, all the Indemnified Party parties hereto shall cooperate with in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the Indemnifying Party in such defense and make available Person’s request) the provision to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials Person of records and information in which are reasonably relevant to such Third-Party Claim, and making officers, directors, employees and agents of the Indemnified Party’s possession Person available on a mutually convenient basis to provide information, testimony at depositions, hearings or under the Indemnified Party’s control relating thereto trials, and such other assistance as is may be reasonably required requested by the Indemnifying PartyPerson. Similarly, in Whether or not the event the Indemnified Party is, directly or indirectly, conducting Indemnifying Person shall have assumed the defense against any such Third of a Third-Party Claim, the Indemnifying Indemnified Person shall not admit any liability with respect to, or settle, compromise or discharge, such Third-Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at Claim without the Indemnifying PartyPerson’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of (which consent shall not be unreasonably withheld or delayed). The Indemnifying Person shall not admit any liability with respect to, or settle, compromise or discharge any Third-Party Claim without the Indemnified PartyPerson’s prior written consent (which consent shall not be unreasonably withheld or delayed) unless any such admission, settlement, compromise or discharge also releases the Indemnified Person completely in connection with such Third-Party Claim.
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Procedures Relating to Indemnification. In order for a party (athe "indemnified party") Any to be entitled to any indemnification provided for under this Agreement, arising out of or involving a claim or demand made by any person, firm, governmental authority or corporation against the indemnified party seeking indemnification under Section 6.01 (an “Indemnified Party”) shall promptly give a "Third Party Claim"), such indemnified party must notify the indemnifying party in writing, and in reasonable detail, of the Third Party from whom indemnification is being sought (an “Indemnifying Party”) Claim within 30 days after receipt by such indemnified party of written notice of any matter which such Indemnified the Third Party has determined has given or would reasonably be expected Claim; provided, however, that failure to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises; provided that the failure to provide such notice notification shall not release affect the Indemnifying Party from any of its obligations under this Article VI indemnification provided hereunder except to the extent the Indemnifying indemnifying party shall have been actually prejudiced as a result of such failure (except that the indemnifying party shall not be liable for any expenses incurred during the period following the end of such 30-day period referred to above in which the indemnified party failed to give such notice and the date on which such notice is given). Thereafter, the indemnified party shall deliver to the indemnifying party, within ten (10) business days after the indemnified party's receipt thereof, copies of all notices and documents (including court papers) received by the indemnified party relating to the Third Party is materially prejudiced by such failureClaim. With respect to any recovery or indemnification sought by an Indemnified Party from the Indemnifying Party that does not involve If a Third Party Claim, if the Indemnifying Party does not notify the Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claimClaim is made against an indemnified party, the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
(b) If an Indemnified Party shall receive notice of any claim or demand asserted by a third indemnifying party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such notice, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then the Indemnifying Party shall will be entitled to assume and control participate in the defense of thereof and, if it so chooses, to assume the defense thereof (unless the indemnifying party is also a party to such Third Party Claim at its expense and through the indemnified party determines in good faith that joint representation would be inappropriate due to a potential conflict of interest) with counsel of its choice if it gives notice of its intention to do so selected by the indemnifying party and reasonably satisfactory to the Indemnified Party within fifteen (15) days of indemnified party. Should the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall indemnifying party be entitled under the preceding sentence to retain its own counsel assume the defense of a Third Party Claim and so elect to assume such defense, the indemnifying party will not be liable to the indemnified party for legal expenses subsequently incurred by the indemnified party in each jurisdiction for which connection with the Indemnified Party determines counsel is requireddefense thereof. If the indemnifying party assumes such defense, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises indemnified party shall have the right to undertake any participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense against (except in the circumstances set forth in the parenthetical to the first sentence of this paragraph). The indemnifying party shall be liable for the fees and expenses of counsel employed by the indemnified party for any such period during which the indemnifying party has not assumed the defense thereof (other than during any period following the 30-day period referred to in the first sentence of this Section 9(f) in which the indemnified party shall have failed to give notice of the Third Party Claim as provided above). If the indemnifying party chooses to defend or prosecute any Third Party Claim, all of the Indemnified Party parties hereto shall cooperate with in the Indemnifying Party in such defense or prosecution thereof. Such cooperation shall include the retention and make available (upon the indemnifying party's request) the provision to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials indemnifying party of records and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is which are reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the Indemnifying indemnifying party shall have assumed the defense of a Third Party Claim, the indemnified party shall cooperate not admit any liability with the Indemnified Party in such defense and make available to the Indemnified Partyrespect to, at the Indemnifying Party’s expenseor settle, all such witnessescompromise or discharge, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the indemnifying party's prior written consent of the Indemnified Party(which consent shall not be unreasonably withheld or delayed).
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Procedures Relating to Indemnification. 9.5.1 In order for a party (a) Any party seeking indemnification under Section 6.01 (an “the "Indemnified Party”") shall promptly give to be entitled to any indemnification, defense or hold harmless provided for under this Section 9 in respect of, arising out or involving a claim or demand made by any persons, firm, governmental authority, corporation or other claimant against the Indemnified Party from whom indemnification is being sought (an “Indemnifying Party”) notice of any matter which a "Third Party Claim"), such Indemnified Party has determined has given or would reasonably be expected must notify the other party (the "Indemnifying Party") in writing, and in reasonable detail, of the Third Party Claim within 30 calendar days after receipt by such Indemnified Party of written notice of the Third Party Claim; provided, however, that failure to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises; provided that the failure to provide such notice notification shall not release affect the Indemnifying Party from any of its obligations under this Article VI indemnification provided hereunder, except to the extent the Indemnifying Party is materially shall have been actually prejudiced by as a result of such failure. With respect to any recovery or indemnification sought by an Indemnified Party from failure (except that the Indemnifying Party that does shall not involve be liable for any expenses or Losses incurred during the period in which the Indemnified Party failed to give such notice). Thereafter, the Indemnified Party shall deliver to the Indemnifying Party, within five (5) business days after the Indemnified Party's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim.
9.5.2 If a Third Party Claim is made against an Indemnified Party, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so chooses, to assume the defense thereof with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. Should the Indemnifying Party be entitled to, and so elect to, assume the defense of a Third Party Claim, if the Indemnifying Party does will not notify be liable to the Indemnified Party within thirty (30) days from its receipt of the notice from for legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof. If the Indemnifying Party is entitled to assume and does assume such defense, the Indemnified Party shall have the right to participate in the defense thereof and to employ counsel, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party disputes shall control such claimdefense but the fees and expenses of such counsel shall be the expense of such Indemnified Party unless (i) the Indemnifying Party has agreed in writing to pay such fees and expenses, (ii) any relief other than the payment of money damages is sought against any Indemnified Party, or (iii) such Indemnified Party shall have been advised by its counsel that there may be one or more legal defenses reasonably available to it which are different from or additional to those available to the Indemnifying Party. In any such case as provided in (i), (ii) or (iii) above, the reasonable fees and expenses of such separate counsel shall be borne by the Indemnifying Party. If the Indemnifying Party is entitled to, and chooses to, defend or prosecute any Third Party Claim, all the parties hereto shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the Indemnifying Party shall have assumed the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party shall not, without the written consent of the Indemnified Party, settle or compromise or consent to the entry of any judgment with respect to any action or Third Party Claim if the effect thereof is to admit any criminal liability by, or to permit any injunctive relief or other order providing non-monetary relief to be entered against, the Indenmified Party.
9.5.3 Upon receipt of notice of any claim of indemnity hereunder, the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
(b) If an Indemnified Party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VIshall, within thirty (30) days of the receipt of after such noticereceipt, notify the Indemnified Party shall give the that such Indemnifying Party notice of either (i) acknowledges and accepts its obligation and agrees to accept liability for any losses resulting from such Third Party Claim; provided that the failure claim or (ii) disputes such claim. Failure to provide give such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except will be deemed to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then the Indemnifying Party shall be entitled to assume constitute acknowledgment and control the defense of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required acceptance by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified Party.
Appears in 1 contract
Sources: Merger Agreement (Integrated Alarm Services Group Inc)
Procedures Relating to Indemnification. (a) Any party seeking indemnification under Section 6.01 An Indemnified Party shall give prompt written notice (an a “Indemnified PartyClaim Notice”) shall promptly give to the Party from whom party or parties obligated to provide indemnification is being sought (an the “Indemnifying Party”) notice after the Indemnified Party first becomes aware of any matter event or other facts (including any Third Party Claim) that has resulted or that might result in any Loss for which the Indemnified Party is entitled to any indemnification under Section 8.2 and Section 8.3, subject to the terms and conditions of this ARTICLE VIII (such claim, an “Indemnification Claim”); provided, that failure to give such notification shall not affect such Indemnified Party has determined has given or would reasonably be expected Party’s right to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, hereunder and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises; provided that the failure to provide such notice shall not release relieve the Indemnifying Party from any of its obligations under this Article VI ARTICLE VIII except to the extent the Indemnifying Party is materially actually prejudiced by such failure. With respect to .
(b) After the giving of any recovery or indemnification sought by an Indemnified Party from Claim Notice pursuant hereto, the Indemnifying Party that does not involve a Third shall respond within twenty (20) Business Days after receipt thereof (the “Claim Response”). Any Claim Response must specify whether the Indemnifying Party Claim, if disputes the Indemnification Claim described in the Claim Notice and the basis of such dispute. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days from 20 Business Days following its receipt of the notice from such Claim Notice that such Indemnifying Party disputes its Liability to the Indemnified Party that under this ARTICLE VIII, such Indemnification Claim specified in the Claim Notice shall be deemed disputed by the Indemnifying Party disputes under this ARTICLE VIII.
(c) If the Indemnifying Party has timely disputed its liability with respect to such claimclaim through the delivery of a Claim Response or otherwise has not timely delivered a Claim Response, the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
(b) If an Indemnified Party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such notice, the Indemnified Party shall give the Indemnifying Party notice use commercially reasonable efforts to negotiate in good faith a resolution of such Third Party Claim; provided that dispute and, if not timely resolved through negotiations within twenty (20) days after the failure to provide conclusion of the twenty (20) Business Day response period, such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then the Indemnifying Party dispute shall be entitled to assume and control the defense resolved in a court of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so competent jurisdiction in accordance with Section 9.7.
(d) Any amounts payable by Parent or Buyer to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party as so finally determined shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any paid by wire transfer of immediately available funds within ten (10) Business Days after such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified Partyfinal determination.
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Procedures Relating to Indemnification. (ai) Any In order for a party seeking indemnification under Section 6.01 (an the “Indemnified Partyindemnified party”) shall promptly give the Party from whom to be entitled to any indemnification is being sought (an “Indemnifying Party”) notice of any matter which such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification provided for under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement in respect of, arising out of which such right of indemnification is claimed or arises; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent the Indemnifying Party is materially prejudiced by such failure. With respect to any recovery or indemnification sought by an Indemnified Party from the Indemnifying Party that does not involve involving a Third Party Claim, if the Indemnifying Party does not notify the Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
(b) If an Indemnified Party shall receive notice of any claim or demand asserted made by a third any Person against the indemnified party (each, a “Third Party Claim”) against it or which may ), such indemnified party must notify the indemnifying party in writing, and in reasonable detail, of the Third Party Claim as promptly as reasonably possible after receipt by such indemnified party of notice of the Third Party Claim; provided, however, that failure to give rise such notification 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 claim for Loss under this Article VIresult of such failure. Thereafter, the indemnified party shall deliver to the indemnifying party, within thirty twenty-five (3025) days after the indemnified party’s receipt thereof, copies of all notices and documents (including court papers) received by the receipt of such noticeindemnified party relating to the Third Party Claim.
(ii) If a Third Party Claim is made against an indemnified party, the Indemnified indemnifying party shall be entitled to participate in the defense thereof and, if it so chooses and acknowledges its indemnification responsibility hereunder, to assume the defense thereof with counsel selected by the indemnifying party and reasonably satisfactory to the indemnified party. Notwithstanding any acknowledgment made pursuant to the immediately preceding sentence, the indemnifying party shall continue to be entitled to assert any limitation on its indemnification responsibility contained in the limitations set forth in Section 11(a) or Section 11(c), as the case may be. Should the indemnifying party so elect to assume the defense of a Third Party Claim, the indemnifying party shall give not be liable to the Indemnifying indemnified party for legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the indemnifying party, it being understood, however, that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof. If the indemnifying party chooses to defend any Third Party notice Claim, all the parties hereto shall cooperate in the defense or prosecution of such Third Party Claim; provided that . Such cooperation shall include the failure to provide such notice shall not release retention and (upon the Indemnifying Party from any of its obligations under this Article VI except indemnifying party’s request) the provision to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party acknowledges in writing its obligation indemnifying party of records and information which are reasonably relevant to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the Indemnifying Party indemnifying party shall be entitled to assume and control have assumed the defense of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party indemnified party shall cooperate not admit any liability with the Indemnified Party in such defense and make available to the Indemnified Partyrespect to, at the Indemnifying Party’s expenseor settle, all such witnessescompromise or discharge, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the indemnifying party’s prior written consent of the Indemnified Party(which consent shall not be unreasonably withheld).
Appears in 1 contract
Procedures Relating to Indemnification. (a) Any party seeking indemnification An indemnified person or entity under Section 6.01 8.2 (an “"Indemnified Party”") shall promptly give the Party from whom indemnification is being sought (an “Indemnifying Party”) prompt written notice of any matter which such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by Stockholder Representative (as defined in Section 8.6), as agent for the Indemnified PartyCompany Stockholders, and containing with a reference copy to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent the Indemnifying Party is materially prejudiced by such failure. With respect to any recovery or indemnification sought by an Indemnified Party from the Indemnifying Party that does not involve a Third Party Claim, if the Indemnifying Party does not notify the Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
(b) If an Indemnified Party shall receive notice Escrow Agent of any claim or demand asserted by a third party (eachevent known to it which gives rise or, a “Third Party Claim”) against it or which in its reasonable judgment, may give rise to a claim for Loss indemnification hereunder by the Indemnified Party against the Company Stockholders; provided that the failure of any Indemnified Party to give notice as provided in this Section 8.5 shall not relieve the Company Stockholders of their obligations under this Article VIVIII, within thirty (30) days except to the extent that such failure has materially and adversely affected the rights of the receipt Company Stockholders. In the case of such noticeany claim for indemnification hereunder arising out of a claim, action, suit or proceeding brought by any person who is not a Party to this Agreement (a "Third-Party Claim"), the Indemnified Party shall also give the Indemnifying Stockholder Representative, as agent for the Company Stockholders, copies of any written claims, process or legal pleadings with respect to such Third-Party notice Claim promptly after such documents are received by the Indemnified Party.
(b) Except as otherwise provided in paragraph (c) below, the Indemnified Parties shall be entitled to control the defense of such Third any Third-Party Claim; provided, however, that the Stockholder Representative, as agent for the Company Stockholders, may elect, at the Company Stockholders' own cost and expense, to participate in any Third-Party Claim; provided further, however, that neither the failure Stockholder Representative nor any Company Stockholder shall take any action with respect to provide such notice shall not release Third-Party Claim before consulting with, and receiving the Indemnifying consent of, each Indemnified Party from any of its obligations under this Article VI except to the extent that the Indemnifying Party is materially prejudiced by such failureinvolved. If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party ClaimStockholder Representative, then the Indemnifying Party shall be entitled to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion as agent for the same counsel Company Stockholders, elects to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel participate in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third a Third-Party Claim, the Indemnifying Stockholder Representative shall, within 30 days of its receipt of the notice provided pursuant to Section 8.5(a) hereof (or sooner, if the nature of such Third-Party Claim so requires), notify the related Indemnified Party of its intent to do so. The Stockholder Representative and each Company Stockholder shall reasonably cooperate in the compromise of, or defense against, such Third-Party Claim. The Company Stockholders shall be responsible for the payment of each Indemnified Party's costs and expenses incurred in connection with such cooperation, and such expenses shall constitute Losses incurred or suffered by the Buyer within the meaning of Section 8.2 hereof. The Indemnified Party shall cooperate with the Indemnified Party in such defense and make available not consent to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession entry of any judgment or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party enter into any settlement without the prior written consent of the Stockholder Representative, as agent for the Company Stockholders, which consent shall not be unreasonably withheld.
(c) If the Indemnified Party elects not to compromise or defend against a Third-Party Claim, the Stockholder Representative, on behalf of the Company Stockholders shall pay, compromise or defend such Third-Party Claim at the Company Stockholders own cost and expense. The Stockholder Representative shall, within thirty days (or sooner, if the nature of such Third-Party Claim so requires), notify the Indemnified Party of its intent to pay, compromise or defend such Third-Party Claim, and such Indemnified Party shall reasonably cooperate in the compromise of, or defense against, such Third-Party Claim. The Company Stockholders shall be responsible for the payment of the Indemnified Parties' costs and expenses incurred in connection with such cooperation, and such costs and expenses shall constitute Losses incurred or suffered by the Buyer within the meaning of Section 8.2 hereof. Neither the Stockholder Representative nor any Company Stockholder shall consent to entry of any judgment or enter into any settlement without the prior written consent of each related Indemnified Party (which consent shall not be unreasonably withheld), unless such judgment or settlement provides solely for money Losses or other money payments for which such Indemnified Party is entitled to indemnification hereunder and includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect of such Third-Party Claim; provided that the Stockholder Representative shall not be entitled to settle any claim, action, suit or proceeding brought by a Taxing Authority in respect of Taxes for any Pre-Closing Period that would have the effect of materially decreasing the Company's deductions for credits or materially increasing the Company's taxable income for any taxable year or period subsequent to the Pre-Closing Period without the prior written consent of the Buyer, which consent shall not be unreasonably withheld. After notice from the Stockholder Representative, as agent for the Company Stockholders, to an Indemnified Party of its election to assume the defense of a Third-Party Claim, the Company Stockholders shall not be liable to such Indemnified Party under this Article VIII for any legal expenses subsequently incurred by such Indemnified Party in connection with the defense thereof; provided that such Indemnified Party shall have the right to employ one counsel of its choice to represent such Indemnified Party if, in such Indemnified Party's reasonable judgment, a conflict of interest between such Indemnified Party and the Company Stockholders exists in respect of such claim, or if there is a reasonable likelihood that a Third-Party Claim may have a material adverse effect on an Indemnified Party, and in that event the reasonable fees and expenses of such separate counsel shall be the responsibility of the Company Stockholders (and shall constitute Losses incurred or suffered by the Buyer within the meaning of Section 8.2(a) hereof).
Appears in 1 contract
Procedures Relating to Indemnification. (a) Any In order for an indemnified party seeking to be entitled to any indemnification under Section 6.01 (an “Indemnified Party”) shall promptly give the Party from whom indemnification is being sought (an “Indemnifying Party”) notice of any matter which such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations for under this Article VI 9 in respect of, arising out of or involving a claim or demand made by any person, firm, Governmental Entity or corporation against the indemnified party (a "Third-Party Claim"), such indemnified party must notify the indemnifying party in writing, and in reasonable detail, of the Third-Party Claim as promptly as reasonably possible after receipt by such indemnified party of written notice of the Third-Party Claim; PROVIDED, HOWEVER, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party is materially indemnifying party shall have been actually prejudiced by as a result of such failure. With respect Thereafter, the indemnified party shall deliver to any recovery or indemnification sought the indemnifying party, within five (5) Business Days after the indemnified party's receipt thereof, copies of all notices and documents (including court papers) received by an Indemnified Party from the Indemnifying Party that does not involve a Third indemnified party relating to the Third-Party Claim; PROVIDED, if HOWEVER, that failure to make such deliveries shall not affect the Indemnifying Party does not notify indemnification provided hereunder except to the Indemnified Party within thirty (30) days from its receipt extent the indemnifying party shall have been actually prejudiced as a result of the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claimfailure.
(b) If a Third-Party Claim is made against an Indemnified indemnified party, the indemnifying party will be entitled to participate in the defense thereof and, if it so elects in writing within ten (10) days of receipt of written notice from the indemnified party and acknowledges its obligation to indemnify the indemnified party therefor, to assume the defense thereof with counsel, accountants or other designee selected by the indemnifying party and reasonably satisfactory to the indemnified party, PROVIDED that the indemnifying party conducts the defense actively and diligently thereafter. Should the indemnifying party so elect to assume the defense of a Third-Party Claim, the indemnifying party will not be liable to the indemnified party for legal or accounting expenses subsequently incurred by the indemnified party in connection with the defense thereof, absent any conflict of interest between such parties. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, unless a conflict of interest would arise if counsel to the indemnifying party also represented the indemnified party, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense, except to the extent of any such conflict of interest between such parties. The indemnifying party shall be liable for the fees and expenses of counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof or in the event of any conflict of interest between the indemnified party and the indemnifying party. All the parties hereto shall cooperate in the defense or prosecution of any Third-Party Claim. Such cooperation shall include the retention and (upon the other party's request) the provision to the other party of records and information that are reasonably relevant to such Third-Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder, at the reasonable expense of the indemnifying party. Whether or not the indemnifying party shall have assumed the defense of a Third-Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge, such Third-Party Claim without the indemnifying party's prior written consent (which consent shall not be unreasonably withheld). The indemnifying party shall not, without the prior written consent of the indemnified party, enter into any settlement of any Third-Party Claim that would result in the imposition of a consent order, injunction or decree which would materially restrict or otherwise materially adversely affect the future activity or conduct of the indemnified party or any Affiliate thereof, or without the prior written consent of the indemnified party (which consent shall not be unreasonably withheld) that does not include, as an unconditional term thereof, the release of the indemnified party from all liability in respect of such Third-Party Claim except the liability satisfied by the indemnifying party.
(c) Notwithstanding the foregoing in this Section 9.6, if a Third-Party Claim for a Straddle Period includes or could reasonably be expected to include both a claim for Taxes that are Excluded Taxes and a claim for Taxes that are Assumed Liabilities, and such claim for Taxes that are Excluded Taxes is not separable from such claim for Taxes that are Assumed Liabilities, the Sellers (if the claim for Taxes that are Excluded Taxes exceeds or reasonably could be expected to exceed in amount the claim for Taxes that are Assumed Liabilities) or otherwise Buyer (Sellers, on the one hand, or Buyer, on the other hand, as the case may be, the "Controlling Party") shall be entitled to control the defense of such Third-Party Claim (such Third-Party Claim, a "Tax Claim"). In such case, the other party (the "Non-Controlling Party") shall be entitled to participate fully (at the Non-Controlling Party's sole expense) in the conduct of such Tax Claim and the Controlling Party shall receive notice not settle such Tax Claim without the consent of such Non-Controlling Party (which consent shall not be unreasonably withheld). The costs and expenses of conducting the defense of such Tax Claim shall be reasonably apportioned based on the relative amounts of the claim for Taxes that are Excluded Taxes and the claim for Taxes that are Assumed Liabilities. For purposes of this Section 9.6(c), the term "Assumed Liabilities" shall include any Taxes of Windmill (other than Excluded Taxes).
(d) Notwithstanding any other provision, (a) Sellers shall be entitled to control in all respects, and neither Buyer nor any of its Affiliates shall be entitled to participate in, any -79- Tax audit or other proceeding with respect to any consolidated, combined or unitary Return that includes any of the Sellers or any of their Affiliates; PROVIDED, HOWEVER, that Sellers may not settle or otherwise resolve the portion, if any, of any claim such Tax audit or demand asserted other proceeding that pertains to income, gain, loss, deduction or credit of Windmill (other than any such portion that could impact an indemnification by the Sellers under clause (vii) of Section 9.2 of this Agreement) without the consent of Buyer, which consent shall not be unreasonably withheld, (b) except as set forth in clause (c) below, Buyer shall be entitled to control in all respects, and neither Sellers nor any of their Affiliates shall be entitled to participate in, any Tax audit or other proceeding with respect to any consolidated, combined or unitary Return that includes the Buyer or any of its Affiliates, (c) if a third party Tax audit or other proceeding (eachincluding but not limited to a Tax audit or other proceeding relating to a consolidated, a “Third Party Claim”combined or unitary Return) against it or which may could give rise to an indemnification by the Sellers under clause (vii) of Section 9.2 of this Agreement, Sellers shall have the right to control in all respects, including as to settlement, at Sellers' expense, the conduct of the portion of such Tax audit or other proceeding which could give rise to such an indemnification, and with respect to such portion, Buyer (A) shall promptly notify Sellers upon receipt of notice of the Tax audit or other proceeding or any proposed assessment, (B) shall thereafter promptly forward to Sellers copies of any communications received from or sent to any Taxing Authority by Buyer, Windmill or any of their Affiliates and (C) shall facilitate to the extent reasonably required by the Sellers, and shall not impede, Seller's control over, such Tax audit or proceeding, and (d) none of the Sellers shall have any obligation whatsoever pursuant to clause (vii) of Section 9.2 or pursuant to Section 9.6(e) of this Agreement if Buyer fails to comply with any of the covenants set forth in clauses (A), (B) and (C) of clause (c) above and Sellers are actually prejudiced as a claim for Loss under result of such failure.
(e) If and to the extent that Sellers are required to indemnify Buyer pursuant to clause (vii) of Section 9.2 of this Article VIAgreement, within thirty (30) days of receipt from Buyer of notification (together with supporting documentation reasonably acceptable to Sellers) of a "determination" within the receipt meaning of such noticeSection 1313 of the Code or other final agreement negotiated by Sellers with the relevant Taxing Authority, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except but in no case sooner than one (1) Business Day prior to the extent that date on which Buyer is obligated to pay the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party acknowledges in writing its obligation applicable Taxing Authority, Sellers shall pay to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then the Indemnifying Party shall be entitled to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so Buyer an amount equal to the Indemnified Party within sum of (1) the net present value (assuming a nine and one-half percent (9.5%) discount rate) of forty percent (40%) of the excess of (x) the amount allocated to the Stock pursuant to the determination over (y) the amount set forth in SCHEDULE 2.2 hereto, amortized over fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of years, and (2) any interest and penalties incurred by Buyer that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion not have been incurred but for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified Partydetermination.
Appears in 1 contract
Sources: Asset Purchase and Sale Agreement (International Multifoods Corp)
Procedures Relating to Indemnification. (a) Any 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 seeking indemnification under Section 6.01 (an “Indemnified Party”) shall promptly give the Party from whom indemnification is being sought (an “Indemnifying Party”) notice of any matter which such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim (or an Affiliate thereof) as to the extent known by the Indemnified Party, and containing a reference which an Indemnifying Party may be obligated to the provisions of provide indemnification pursuant to this Agreement in respect of which (a “Third Party Claim”), such right of indemnification is claimed or arises; provided that the failure to provide such notice shall not release Indemnitee will notify the Indemnifying Party from any in writing, and in reasonable detail, of its obligations under this Article VI 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 is materially shall have been actually prejudiced by as a result of such failure. With respect Thereafter, the Indemnitee will deliver to any recovery the Indemnifying Party, promptly after the Indemnitee’s receipt thereof, copies of all material notices and documents (including court papers) received or indemnification sought transmitted by the Indemnitee relating to the Third Party Claim.
(b) If a Third Party Claim is made against an Indemnified Party from Indemnitee, the Indemnifying Party will be entitled to participate in or to assume the defense thereof (in either case, 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 the Indemnitee’s reasonable judgment a conflict of interest exists in respect of such claim or if the Indemnifying Party shall have assumed responsibility for such claim with any reservations or exceptions, such Indemnitee will have the right to employ separate counsel reasonably satisfactory to the Indemnifying Party to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel for all Indemnitees similarly situated) shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee will have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party will control such defense. The Indemnifying Party will 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. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all material 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). If the Indemnifying Party chooses to defend a Third Party Claim, the parties hereto will cooperate in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party), which cooperation shall include the retention in accordance with this Agreement and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(c) 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 (which consent will not be unreasonably withheld); provided, that if the Indemnifying Party assumes the defense of any Third Party 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 Indemnifiable Losses in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee and its Affiliates completely from all Liability in connection with such Third Party Claim; provided, however, that the Indemnitee may refuse to agree to any such settlement, compromise or discharge (x) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (y) that, in the reasonable opinion of the Indemnitee, would otherwise materially adversely affect the Indemnitee or any of its Affiliates. Whether or not the Indemnifying Party shall have assumed the defense of a Third Party Claim, the Indemnitee 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 will not be unreasonably withheld).
(d) Any claim on account of Indemnifiable Losses which does not involve a Third Party Claim, if Claim will be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party does not from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
(b) If an Indemnified Party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such notice, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided that the failure to provide such notice shall will not release relieve the Indemnifying Party from any of its obligations liability which it may have to such Indemnitee under this Article VI Agreement, except to the extent that the Indemnifying Party is materially shall have been actually prejudiced by such failure. If .
(e) In the event of payment in full by an Indemnifying Party acknowledges to any Indemnitee in writing its obligation to indemnify the Indemnified Party hereunder against connection with any Losses that may result from such Third Party Claim, then the such Indemnifying Party will be subrogated to and shall be entitled stand in the place of such Indemnitee as to assume and control the defense any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any claimant or plaintiff asserting such Third Party Claim as provided above, the Indemnified Party shall or against any other Person. Such Indemnitee will cooperate with the such Indemnifying Party in a reasonable manner, and at the cost and expense of such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession prosecuting any subrogated right or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified Partyclaim.
Appears in 1 contract
Procedures Relating to Indemnification. (a) Any 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 seeking indemnification under Section 6.01 (an “Indemnified Party”) shall promptly give the Party from whom indemnification is being sought (an “Indemnifying Party”) notice of any matter which such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim (or an Affiliate thereof) as to the extent known by the Indemnified Party, and containing a reference which an Indemnifying Party may be obligated to the provisions of provide indemnification pursuant to this Agreement in respect of which (a "Third Party Claim"), such right of indemnification is claimed or arises; provided that the failure to provide such notice shall not release Indemnitee will notify the Indemnifying Party from any in writing, and in reasonable detail, of its obligations under this Article VI 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 is materially shall have been actually prejudiced by as a result of such failure. With respect Thereafter, the Indemnitee will deliver to any recovery the Indemnifying Party, promptly after the 70 75 Indemnitee's receipt thereof, copies of all material notices and documents (including court papers) received or indemnification sought transmitted by the Indemnitee relating to the Third Party Claim.
(b) If a Third Party Claim is made against an Indemnified Party from Indemnitee, the Indemnifying Party will be entitled to participate in or to assume the defense thereof (in either case, 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 the Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or if the Indemnifying Party shall have assumed responsibility for such claim with any reservations or exceptions, such Indemnitee will have the right to employ separate counsel reasonably satisfactory to the Indemnifying Party to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel for all Indemnitees similarly situated) shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnitee will have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party will control such defense. The Indemnifying Party will 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. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all material 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). If the Indemnifying Party chooses to defend a Third Party Claim, the parties hereto will cooperate in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party), which cooperation shall include the retention in accordance with this Agreement and (upon the Indemnifying Party's request) the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(c) 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 (which consent will not be unreasonably withheld); provided, that if the Indemnifying Party assumes the defense of any Third Party 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 Indemnifiable Losses in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee and its Affiliates completely from all Liability in connection with such Third Party Claim; provided, however, that the Indemnitee may refuse to agree to any such settlement, compromise or discharge (x) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (y) that, in the reasonable opinion of the Indemnitee, would otherwise materially adversely affect the 71 76 Indemnitee or any of its Affiliates. Whether or not the Indemnifying Party shall have assumed the defense of a Third Party Claim, the Indemnitee 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 will not be unreasonably withheld).
(d) Any claim on account of Indemnifiable Losses which does not involve a Third Party Claim, if Claim will be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party does not from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
(b) If an Indemnified Party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such notice, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided that the failure to provide such notice shall will not release relieve the Indemnifying Party from any of its obligations liability which it may have to such Indemnitee under this Article VI Agreement, except to the extent that the Indemnifying Party is materially shall have been actually prejudiced by such failure. If .
(e) In the event of payment in full by an Indemnifying Party acknowledges to any Indemnitee in writing its obligation to indemnify the Indemnified Party hereunder against connection with any Losses that may result from such Third Party Claim, then the such Indemnifying Party will be subrogated to and shall be entitled stand in the place of such Indemnitee as to assume and control the defense any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any claimant or plaintiff asserting such Third Party Claim as provided above, the Indemnified Party shall or against any other Person. Such Indemnitee will cooperate with the such Indemnifying Party in a reasonable manner, and at the cost and expense of such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession prosecuting any subrogated right or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified Partyclaim.
Appears in 1 contract
Procedures Relating to Indemnification. (a) Any party seeking indemnification An indemnified Person under Section 6.01 9.2 or 9.4 (an “the "Indemnified Party”") shall promptly give prompt written notice to the Party from whom indemnification is being sought indemnifying party (an “the "Indemnifying Party”") notice of any matter which such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement Loss in respect of which such right Indemnified Party is seeking indemnification under Section 9.2 or 9.4, specifying in reasonable detail the nature of indemnification is claimed such Loss, the section or arises; provided sections of this Agreement to which the Loss relates, and the amount of such Loss (or if not then determinable, its best estimate of the amount of such Loss), except that the any delay or failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent the Indemnifying Party is materially prejudiced by such failure. With respect to any recovery or indemnification sought by an Indemnified Party from the Indemnifying Party that does not involve a Third Party Claim, if the Indemnifying Party does not so notify the Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party shall only relieve the Indemnifying Party of its obligations hereunder to the extent, if at all, and only to the extent that it is actually prejudiced by reason of such delay or failure. Any such notice given by any Indemnified Party under this Section 9.6 shall be deemed to have accepted and agreed with such claimgiven as provided in Section 11.2.
(b) If an Indemnified Party shall receive notice a Loss is suffered or incurred for or on account of any claim or demand asserted by arises from or in connection with a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such notice, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then the Indemnifying Party shall be entitled to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with assume the defense thereof, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of all expenses. The Indemnified Party shall have the right to employ separate counsel in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by and participate in such defense thereof at its own expense; provided, however, if in the Indemnifying Party without the prior written consent reasonable operation of the Indemnified Party's counsel, a conflict with the Indemnifying Party's legal position arises that warrants the Indemnified Party obtaining its own counsel, the Indemnifying Party shall pay the expenses of the Indemnified Party's counsel. The Indemnifying Party shall not, without the Indemnified Party's prior written consent, settle or compromise any Third Party Claim or consent to the entry of any judgment with respect to any Third Party Claim. If the Indemnifying Party fails to assume the defense of any Third Party Claim within twenty (20) business days after notice thereof, the Indemnified Party shall have the right to undertake the defense, compromise or settlement of such Third Party Claim for the account of the Indemnifying Party.
Appears in 1 contract
Procedures Relating to Indemnification. (a) Any In order for an indemnified party seeking to be entitled to any indemnification provided for under Section 6.01 this Article 10 in respect of, arising out of or involving a claim or demand made by any Person (an other than a Party or Affiliate thereof) against the indemnified party (a “Indemnified PartyThird-Party Claim”) shall ), such indemnified party must notify the indemnifying party in writing, and in reasonable detail, of the Third-Party Claim as promptly give the Party from whom indemnification is being sought (an “Indemnifying Party”) as reasonably practicable after receipt by such indemnified party of written notice of any matter which such Indemnified the Third-Party has determined has given or would reasonably be expected Claim, except that failure to give rise to a right of such notification will not affect the indemnification provided under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent the Indemnifying Party indemnifying party is materially actually prejudiced by as a result of such failure. With respect The indemnified party will deliver to any recovery or indemnification sought the indemnifying party, within five Business Days after the indemnified party’s receipt thereof, copies of all material notices and documents (including court papers) received by an Indemnified Party from the Indemnifying Party that does not involve a Third indemnified party relating to the Third-Party Claim, if the Indemnifying Party does not notify the Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
(b) If an Indemnified a Third-Party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise to a claim Claim that is exclusively for Loss under this Article VI, within thirty (30) days of the receipt of such notice, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except civil monetary damages pursuant to the extent that terms of this Agreement is made against an indemnified party, and if the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party indemnifying party acknowledges in writing its obligation to indemnify the Indemnified Party hereunder indemnified party against any and all Covered Losses that may result from such Third Third-Party Claim, then the Indemnifying Party indemnifying party will be entitled to participate in the defense thereof and, if it so chooses, to assume the defense thereof with counsel selected by the indemnifying party and reasonably satisfactory to the indemnified party at the expense of the indemnifying party Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume and control the defense of such any Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists for equitable relief or is reasonably likely to exist a conflict of interest any claim that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party impose criminal liability or damages, and the Indemnifying Party, then indemnified party shall have the Indemnified Party shall be entitled right to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is requireddefend, at the Indemnifying Party’s expense. In expense of the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided aboveindemnifying party, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim. Should the NAI-1502820106v1 indemnifying party so elect to assume the defense of a Third-Party Claim, the Indemnifying Party shall cooperate indemnifying party will not be liable to the indemnified party for legal expenses subsequently incurred by the indemnified party in connection with the Indemnified Party defense thereof, unless (i) the employment of such counsel shall have been specifically authorized in such defense and make available writing by the indemnifying party or (ii) the named parties to the Indemnified PartyThird-Party Claim (including any impleaded parties) include both the indemnified party and the indemnifying party, and the indemnified party reasonably determines that representation by counsel to the indemnifying party of both the indemnifying party and such indemnified party may present such counsel with a conflict of interest. If the indemnifying party assumes such defense, the indemnified party will have the right to participate in the defense thereof and to employ counsel, at its own expense (except as provided in the Indemnifying Party’s expenseimmediately preceding sentence), separate from the counsel employed by the indemnifying party, it being understood, however, that the indemnifying party shall control such defense. The indemnifying party will be liable for the fees and expenses of counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof. If the indemnifying party chooses to defend any Third-Party Claim, all such witnesses, records, materials the Parties will cooperate in the defense or prosecution thereof. Such cooperation will include the retention and (upon the indemnifying party’s request) the provision to the indemnifying party of records and information in that are reasonably relevant to such Third-Party Claim, and the Indemnifying Party’s possession use of reasonable efforts to make employees available on a mutually convenient basis, without charge, to provide additional information and explanation of any material provided under this Section 10.04(b). Whether or under not the Indemnifying Party’s control relating thereto as is reasonably required by indemnifying party will have assumed the Indemnified Party. No defense of a Third-Party Claim, neither the indemnified party nor any of its Affiliates will admit any Liability with respect to, consent to the entry of judgment, or settle, compromise or discharge, such Third Third-Party Claim may without the indemnifying party’s prior written consent (which consent will not be settled by unreasonably withheld). If the Indemnifying indemnifying party assumes the defense of any Third-Party Claim, the indemnifying party shall not, without the prior written consent of the Indemnified Partyindemnified party, enter into any settlement or compromise or consent to the entry of any judgment with respect to such Third-Party Claim if such settlement, compromise or judgment (i) does not include an unconditional written release by the claimant or plaintiff of the indemnified party from all liability in respect of such Third‑Party Claim, (ii) subjects the indemnified party to any injunctive relief or other equitable remedy, other than solely the payment of money damages for which the indemnified party will be indemnified hereunder, or (iii) includes a statement or admission of fault, culpability or failure to act by or on behalf of any indemnified party.
(c) If any indemnified party desires to assert any claim for indemnification provided under this Article 10 other than a claim in respect of, arising out of or involving a Third-Party Claim, such indemnified party will notify the indemnifying party in writing, and in reasonable detail (taking into account the information then available to such indemnified party), of such claim promptly after becoming aware of the existence of such claim, except that the failure of an indemnified party to notify the indemnifying party will relieve the indemnifying party from its obligation to indemnify only to the extent that the indemnifying party is actually prejudiced as a result of such failure. NAI-1502820106v1
Appears in 1 contract
Procedures Relating to Indemnification. In order for a party (athe "indemnified party") Any party seeking to be entitled to any indemnification provided for under Section 6.01 24(a) in respect of, arising out of or involving a claim or demand made by any person against the indemnified party (an “Indemnified Party”) shall promptly give a "Third Party Claim"), such indemnified party must notify the indemnifying party in writing, and in reasonable detail, of the Third Party from whom indemnification is being sought (an “Indemnifying Party”) Claim within 10 business days after receipt by such indemnified party of written notice of any matter which such Indemnified the Third Party has determined has given or would reasonably be expected Claim; provided, however, that failure to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises; provided that the failure to provide such notice notification shall not release affect the Indemnifying Party from any of its obligations under this Article VI indemnification provided hereunder except to the extent the Indemnifying indemnifying party shall have been actually prejudiced as a result of such failure (except that the indemnifying party shall not be liable for any expenses incurred during the period in which the indemnified party failed to give such notice). Thereafter, the indemnified party shall deliver to the indemnifying party, within 5 business days after the indemnified party's receipt thereof, copies of all notices and documents (including court papers) received by the indemnified party relating to the Third Party Claim. If a Third Party Claim is materially prejudiced made against an indemnified party, the indemnifying party shall be entitled to participate in the defense thereof and, if it so chooses and acknowledges its obligation to indemnify the indemnified party therefor, to assume the defense thereof with counsel selected by the indemnifying party; provided that such failurecounsel is reasonably acceptable to the indemnified party. With respect Should the indemnifying party so elect to any recovery or indemnification sought by an Indemnified Party from assume the Indemnifying Party that does not involve defense of a Third Party Claim, if the Indemnifying Party does not notify the Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
(b) If an Indemnified Party shall receive notice of any claim or demand asserted by a third indemnifying party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such notice, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided that the failure to provide such notice shall not release be liable to the Indemnifying Party from any of its obligations under this Article VI indemnified party for legal expenses subsequently incurred by the indemnified party in connection with the defense thereof, except to the extent that required in connection with the Indemnifying Party is materially prejudiced cooperation by such failureindemnified parties pursuant to the succeeding paragraph. If the Indemnifying Party acknowledges in writing its obligation to indemnify indemnifying party assumes such defense, the Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then the Indemnifying Party indemnified party shall be entitled to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises have the right to undertake participate in the defense thereof and to employ counsel (reasonably acceptable to the indemnifying party), at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of counsel employed by the indemnified party for any such period during which the indemnifying party has failed to assume the defense against any such thereof (other than during the period prior to the time the indemnified party shall have given notice of the Third Party Claim as provided above). If the indemnifying party so elects to assume the defense of any Third Party Claim, all of the Indemnified Party indemnified parties shall cooperate with the Indemnifying Party indemnifying party in such the defense or prosecution thereof. Such cooperation shall include the retention and make available (upon the indemnifying party's request) the provision to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials indemnifying party of records and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is which are reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the Indemnifying indemnifying party shall have assumed the defense of a Third Party Claim, the indemnified party shall cooperate not admit any liability with the Indemnified Party in such defense and make available to the Indemnified Partyrespect to, at the Indemnifying Party’s expenseor settle, all such witnessescompromise or discharge, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the indemnified party's prior written consent (which consent shall not be unreasonably withheld). If the indemnifying party shall have assumed the defense of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the Indemnified Partyliability in connection with such Third Party Claim and which releases the indemnifying party completely in connection with such Third Party Claim.
Appears in 1 contract
Procedures Relating to Indemnification. (a) Any If an indemnified party seeking shall desire to assert any claim for indemnification under Section 6.01 (an “Indemnified Party”) shall promptly give the Party from whom indemnification is being sought (an “Indemnifying Party”) notice of any matter which such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification provided for under this Agreement stating Article VI in respect of, arising out of or involving a claim or demand made by any Person (other than a party hereto or Affiliate thereof) against the indemnified party (a “Third-Party Claim”), such indemnified party shall notify the indemnifying party in writing, and in reasonable detail (taking into account the factual basis information then available to such indemnified party), of the claim Third-Party Claim promptly after receipt by such indemnified party of written notice of the Third-Party Claim; provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent known the indemnifying party shall have been materially prejudiced as a result of such failure. The indemnified party shall deliver to the indemnifying party, promptly after the indemnified party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Partyindemnified party relating to the Third-Party Claim; provided, however, that the failure to deliver such copies shall not affect the indemnification provided hereunder except to the extent the indemnifying party shall have been materially prejudiced as a result of such failure.
(b) If a Third-Party Claim is made against an indemnified party, the indemnifying party will be entitled to participate in the defense thereof and, if it so chooses and acknowledges without reservation its obligation to indemnify the indemnified party therefor, to assume the defense thereof with counsel selected by the indemnifying party and reasonably satisfactory to the indemnified party. Should the indemnifying party so assume the defense of a Third-Party Claim, the indemnifying party will not be liable to the indemnified party for legal expenses subsequently incurred by the indemnified party in connection with the defense thereof, unless the Third-Party Claim involves potential conflicts of interest or substantially different defenses for the indemnified party and the indemnifying party. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof with its own counsel (at the indemnified party’s expense, except as indicated in the immediately preceding sentence). The indemnifying party shall be liable for the reasonable fees and expenses of counsel employed by the indemnified party (i) for any period during which the indemnifying party has not assumed (or does not have the right to assume) the defense of a Third-Party Claim or (ii) as otherwise contemplated by the two immediately preceding sentences. If the indemnifying party chooses to defend any Third-Party Claim, all the parties hereto shall reasonably cooperate in the defense or prosecution thereof. Whether or not the indemnifying party shall have assumed the defense of a Third-Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge, such Third-Party Claim without the indemnifying party’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed if the indemnifying party has not assumed the defense of such Third-Party Claim). The indemnifying party may pay, settle or compromise a Third-Party Claim with the written consent of the indemnified party, but only so long as such settlement includes, and containing a reference it shall be reasonable to the provisions withhold consent if such settlement does not include, (1) an unconditional release of this Agreement all indemnified parties from all liability in respect of which such right Third-Party Claim, (2) does not subject any indemnified party to any injunctive relief or other equitable remedy and (3) does not include a statement or admission of fault, culpability or failure to act by or on behalf of any indemnified party.
(c) If an indemnified party shall desire to assert any claim for indemnification is claimed provided for under this Article VI other than a claim in respect of, arising out of or arisesinvolving a Third-Party Claim, such indemnified party shall promptly notify the indemnifying party in writing, and in reasonable detail (taking into account the information then available to such indemnified party), of such claim promptly after becoming aware of the existence of such claim; provided that the failure to provide give such notice notification shall not release affect the Indemnifying Party from any of its obligations under this Article VI indemnification provided for hereunder except to the extent the Indemnifying Party is indemnifying party shall have been materially prejudiced by such failure. With respect to any recovery or indemnification sought by an Indemnified Party from the Indemnifying Party that does not involve as a Third Party Claim, if the Indemnifying Party does not notify the Indemnified Party within thirty (30) days from its receipt result of the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
(b) If an Indemnified Party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such notice, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party acknowledges in writing indemnifying party does not respond to such notice within 20 Business Days after its obligation receipt, it will have no further right to indemnify contest the Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then the Indemnifying Party shall be entitled to assume and control the defense validity of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified Partyclaim.
Appears in 1 contract
Sources: Securities Purchase Agreement (Noranda Aluminum Holding CORP)
Procedures Relating to Indemnification. (a) Any A party seeking indemnification under Section 6.01 pursuant to this Article 8 (an “"Indemnified Party”") shall promptly give prompt written notice to the Party party from whom such indemnification is being sought (an “the "Indemnifying Party”") notice of the assertion of any matter claim, the incurrence of any Damages, or the commencement of any action, suit or proceeding of which such Indemnified Party it has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, knowledge and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises; provided that the failure to provide such notice shall not release indemnity may be sought hereunder (a "Third Party Claim"), and will give the Indemnifying Party from such information with respect thereto as the Indemnifying Party may reasonably request, but failure to give such required notice shall relieve the Indemnifying Party of any of its obligations under this Article VI except liability hereunder only to the extent that the Indemnifying Party is materially prejudiced by such failurehas suffered actual prejudice thereby. With respect to any recovery or indemnification sought by an Thereafter, the Indemnified Party from shall deliver to the Indemnifying Party, within ten (10) business days after the Indemnified Party's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party that does not involve a relating to such Third Party Claim, if the . The Indemnifying Party does not notify shall have the right, exercisable by written notice to the Indemnified Party within thirty (30) days from its after receipt of the notice from the Indemnified Party of the commencement of or assertion of any claim or action, suit or proceeding by a third party in respect of which indemnity may be sought hereunder, to assume the defense of such Third Party Claim which involves (and continues to involve) solely monetary damages using counsel reasonably satisfactory to the Indemnified Party; provided, that (A) the Indemnifying Party disputes expressly agrees in such claimnotice that, as between the Indemnifying Party and the Indemnified Party, solely the Indemnifying Party shall be obligated to satisfy and discharge the Third Party Claim, (B) such Third Party Claim does not include a request or demand for injunctive or other equitable relief and (C) the Indemnifying Party makes reasonably adequate provision to assure the Indemnified Party of the ability of the Indemnifying Party to satisfy the full amount of any adverse monetary judgment that is reasonably likely to result. The Indemnifying Party shall be deemed to have accepted and agreed satisfied the condition set forth in clause (C) of the preceding sentence if it is a regulated utility. Should the Indemnifying Party elect to assume the defense of a Third Party Claim pursuant to this Section 8.6, the Indemnifying Party will not be liable to the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in connection with such claimthe defense thereof.
(b) If an Indemnified Party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such notice, Neither the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then nor the Indemnifying Party shall be entitled to assume and control the defense of such admit any liability with respect to, or settle, compromise or discharge any Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the other, which consent shall not be unreasonably withheld or delayed.
(c) The Indemnifying Party or the Indemnified Party, as the case may be, shall have the right to participate in (but not control), at its own expense, the defense of any Third Party Claim which the other party is defending as provided in this Agreement.
(d) 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 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.
Appears in 1 contract
Procedures Relating to Indemnification. (ai) Any In order for a party seeking indemnification under Section 6.01 (an the “Indemnified Party”) shall promptly give the Party from whom to be entitled to any indemnification is being sought (an “Indemnifying Party”) notice of any matter which such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification provided for under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement in respect of, arising out of which such right of indemnification is claimed or arises; provided that the failure to provide such notice shall not release the Indemnifying Party from involving a claim or demand made by any of its obligations under this Article VI except to the extent the Indemnifying Party is materially prejudiced by such failure. With respect to any recovery person, firm, Governmental Authority or indemnification sought by an Indemnified Party from the Indemnifying Party that does not involve a Third Party Claim, if the Indemnifying Party does not notify corporation against the Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
(b) If an Indemnified Party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI), within thirty (30) days such Indemnified Party must notify the indemnifying party in writing, and in reasonable detail, of the Third Party Claim as promptly as reasonably possible after receipt by such Indemnified Party of notice of the Third Party Claim; provided, however, that failure to give such notification 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 noticefailure. Thereafter, the Indemnified Party shall give deliver to the Indemnifying indemnifying party, within five business days after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party notice of such relating to the Third Party Claim; provided that .
(ii) If a Third Party Claim is made against an Indemnified Party, the failure indemnifying party shall be entitled to provide such notice shall not release participate in the Indemnifying Party from any of its obligations under this Article VI except to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party defense thereof and, if it so chooses and acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against therefore, to assume the defense thereof with counsel selected by the indemnifying party and reasonably satisfactory to the Indemnified Party. Notwithstanding any Losses acknowledgment made pursuant to the immediately preceding sentence, the indemnifying party shall continue to be entitled to assert any limitation on its indemnification responsibility contained in the provisos to Section 12(a) or Section 12(c) hereof, as the case may be. Should the indemnifying party so elect to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof. If the indemnifying party assumes such defense, the Indemnified Party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the indemnifying party, it being understood, however, that may result from the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of counsel employed by the Indemnified Party for any period during which the indemnifying party has not assumed the defense thereof. If the indemnifying party chooses to defend any Third Party Claim, all the parties hereto shall cooperate in the defense or prosecution of such Third Party Claim. Such cooperation shall include the retention and (upon the indemnifying party’s request) the provision to the indemnifying, party of records and information which are reasonably relevant to such Third Party Claim, then and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the Indemnifying Party indemnifying party shall be entitled to assume and control have assumed the defense of such a Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided aboveClaim, the Indemnified Party shall cooperate not admit any liability with the Indemnifying Party in such defense and make available to the Indemnifying Partyrespect to, at the Indemnifying Party’s expenseor settle, all witnessescompromise or discharge, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the indemnifying party’s prior written consent of the Indemnified Party(which consent shall not be unreasonably withheld).
Appears in 1 contract
Sources: Purchase and Sale Agreement (Highland Hospitality Corp)
Procedures Relating to Indemnification. (a) Any party seeking indemnification under Section 6.01 (an “An Indemnified Party”) Party shall promptly give the Indemnifying Party from whom indemnification is being sought (an “Indemnifying Party”) prompt written notice of any matter which such an Indemnified Party has determined has given or would reasonably be expected to could give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis (other than a Third Party Claim), within ten (10) Business Days of the claim to the extent known by the Indemnified Partysuch determination (an “Indemnity Notice”); provided, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises; provided however, that the failure to provide such notice give an Indemnity Notice shall not release the Indemnifying Party from any of its obligations under this Article VI waive an Indemnified Party’s right to indemnification, except only if and to the extent the Indemnifying Party demonstrates it is materially actually prejudiced by the Indemnified Party’s failure to give notice or such failureIndemnity Notice is given after the expiration of the survival period, if applicable. With respect The Indemnifying Party shall have thirty (30) calendar days from receipt of any such Indemnity Notice to any recovery or indemnification sought by an give notice of dispute of the claim to the Indemnified Party. The Indemnified Party from shall reasonably cooperate and assist the Indemnifying Party that does not involve in determining the validity of any claim for indemnity (other than a Third Party Claim, if the Indemnifying Party does not notify ) by the Indemnified Party within thirty (30) days from its receipt and in otherwise resolving such matters. Such assistance and cooperation shall include providing reasonable access to and copies of the notice from the Indemnified Party that the Indemnifying Party disputes information, records and documents relating to such claimmatters, the Indemnifying Party shall be deemed and making employees available on a mutually convenient basis to have accepted provide additional information and agreed with such claimexplanation of any material provided hereunder.
(b) If an Indemnified Party shall receive notice of any claim claim, demand or demand asserted Proceeding is brought by a third Person who is not a party to this Agreement or an Affiliate thereof (each, a “Third Party Claim”) against it or which may give rise an Indemnified Party, and if such party intends to a claim for Loss under seek indemnification with respect thereto pursuant to this Article VI7, such Indemnified Party shall promptly, but in any event within thirty ten (3010) days of the receipt of such notice, Business Days after the Indemnified Party shall give learns of the existence of the Third Party Claim, notify the Indemnifying Party in writing of the Third Party Claim; provided, however, that no delay on the part of the Indemnified Party in notifying the Indemnifying Party will relieve the Indemnifying Party from any obligation hereunder except only if and to the extent the Indemnifying Party demonstrates it is actually prejudiced by the Indemnified Party’s failure to give notice or such Indemnity Notice is given after the expiration of the survival period, if applicable. The Indemnified Party will deliver to the Indemnifying Party, promptly after the Indemnified Party’s receipt thereof, copies of all documents relating to the Third Party Claim and notices and documents relating to the Third Party Claim received by the Indemnified Party from the Person that instituted the Third Party Claim.
(c) The Indemnifying Party will have the right to participate in or assume the defense of the Third Party Claim (in either case at the expense of the Indemnifying Party), so long as the Indemnifying Party delivers written notice to the Indemnified Party of its election to assume the defense of the Third Party Claim within fifteen (15) Business Days of receipt of written notice of such Third Party Claim; provided that Claim from the failure to provide such notice shall not release Indemnified Party. Should the Indemnifying Party from any so elect to assume the defense of its obligations under this Article VI except to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such a Third Party Claim, then the Indemnifying Party shall not be entitled liable to assume and control the Indemnified Party for any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof, unless the joint representation of the indemnifying party and the Indemnified Party by a single law firm with respect to such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict involves potential conflicts of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion or substantially different defenses for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then or the Third Party Claim seeks an injunction or other equitable relief against the Indemnified Party that would restrict or adversely affect the ongoing business or operations of such Indemnified Party or its Affiliates in a material manner if successful. If the Indemnifying Party is conducting the defense of the Third Party Claim in accordance with the provisions above, the Indemnified Party, at its sole cost and expense (except to the extent provided in the immediately preceding sentence), may retain separate counsel, and participate in the defense of the Third Party Claim, it being understood that the Indemnifying Party will control such defense. If the Indemnifying Party shall have assumed the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent shall not be entitled unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing, the Indemnified Party shall consent to retain any compromise or settlement of a Third Party Claim by the Indemnifying Party, if such compromise or settlement (i) does not restrict or adversely affect the conduct of the Indemnified Party’s or its own counsel Affiliates’ businesses or operations in each jurisdiction a material manner, (ii) does not include an admission of wrongdoing or misconduct by the Indemnified Party, (iii) fully and irrevocably releases the Indemnified Party from all Liabilities and obligations with respect to such Third Party Claim (other than in an amount less than the aggregate of the Deductible and any applicable Claim Threshold), (iv) does not involve any claim for which the Indemnified Party determines counsel is requirednot fully indemnified by the Indemnifying Party and (v) does not impose any injunctive or other equitable relief against the Indemnified Party. If the Indemnifying Party has not assumed the defense of such Third Party Claim within fifteen (15) Business Days of receipt of written notice of such Third Party Claim, at the Indemnified Party will (upon delivering written notice to such effect to the Indemnifying Party’s expense) have the right to undertake the defense of such Third Party Claim. In the event that the Indemnifying Indemnified Party exercises assumes the right to undertake any such defense against any such of the Third Party Claim as provided aboveClaim, the Indemnified Party shall keep the Indemnifying Party reasonably informed of the progress of the defense, compromise or settlement of the Third Party Claim; provided, however, that if the Indemnifying Party has agreed in writing that it is obligated under the terms of its indemnity hereunder in connection with such Third Party Claim, any compromise or settlement of a Third Party Claim by the Indemnified Party shall require the prior written consent of the Indemnifying Party (not to be unreasonably withheld, conditioned or delayed). The Indemnifying Party shall not be liable for the fees and expenses of more than one (1) outside counsel and reasonably necessary local counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof. Each party shall reasonably cooperate with the Indemnifying Party other party in such defense and make available to the Indemnifying Partyparty undertaking the defense of the Third Party Claim, at the Indemnifying Party’s expenseon a mutually convenient basis, all witnesses, pertinent records, materials and information in the Indemnified Partysuch party’s possession or under the Indemnified Partysuch party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim as may be settled reasonably requested by the Indemnifying Party without party undertaking the prior written consent defense of the Indemnified PartyThird Party Claim.
Appears in 1 contract
Sources: Intellectual Property Purchase and License Agreement (Post Holdings, Inc.)
Procedures Relating to Indemnification. (a) Any party seeking In order for a Person (the "INDEMNITEE") to be entitled to any indemnification provided for under Section 6.01 (an “Indemnified Party”) shall promptly give the Party from whom indemnification is being sought (an “Indemnifying Party”) notice of any matter which such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement in respect of, arising out of which or involving a claim or demand made by any Person against the Indemnitee (a "THIRD PARTY CLAIM"), such right Indemnitee must notify the Buyer in writing (the "INDEMNIFICATION NOTICE"), and in reasonable detail, of indemnification is claimed or arisesthe Third Party Claim as promptly as reasonably possible after receipt by such Indemnitee of notice of the Third Party Claim; provided PROVIDED, HOWEVER, that the failure to provide give such notice notification on a timely basis shall not release affect the Indemnifying Party from any of its obligations under this Article VI indemnification provided hereunder except to the extent the Indemnifying Party is materially Buyer shall have been actually prejudiced by as a result of such failure. With respect Thereafter, the Indemnitee shall deliver to any recovery or indemnification sought the Buyer, within five business days after the Indemnitee's receipt thereof, copies of all notices and documents (including court papers) received by an Indemnified Party from the Indemnifying Party that does not involve a Indemnitee relating to the Third Party Claim, if the Indemnifying Party does not notify the Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
(b) If an Indemnified Party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party Claim”) Claim is made against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such noticean Indemnitee, the Indemnified Party Buyer shall give be entitled to participate in the Indemnifying Party notice of such Third Party Claim; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party defense thereof and, if it so chooses and acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then Indemnitee therefor (at the Indemnifying Party shall be entitled time it elects to assume and control the defense of such Third Party Claim at its expense Claim, which shall be not later than 30 days after the date of the Indemnification Notice), to assume the defense thereof with counsel selected by the Buyer and through counsel of its choice if it gives notice of its intention to do so reasonably satisfactory to the Indemnified Indemnitee. Should the Buyer so elect to assume the defense of a Third Party within fifteen Claim, the Buyer shall (15i) days except as otherwise provided in this Section 11.3, not be liable to the Indemnitee for legal expenses subsequently incurred by the Indemnitee in connection with the defense thereof and (ii) keep the Indemnitee fully and timely informed of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely all material developments with respect to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided aboveand shall deliver to the Indemnitee, within ten days after the Buyer's receipt thereof, copies of all notices and documents (including court papers) received by the Buyer with respect to such Third Party Claim. If the Buyer assumes such defense, the Indemnified Party Indemnitee shall cooperate with have the Indemnifying Party right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Buyer, it being understood, however, that the Buyer shall control such defense and make available defense. Notwithstanding the foregoing, the Indemnitee shall have the right to employ separate counsel (reasonably acceptable to the Indemnifying Party, Buyer) at the Indemnifying Party’s expenseBuyer's expense and to control its own defense of such Third Party Claim if in the reasonable opinion of counsel to the Indemnitee a conflict or potential conflict exists between the Buyer and the Indemnitee that would make such separate representation advisable. The Buyer shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Buyer has not assumed the defense thereof. If the Buyer chooses to defend any Third Party Claim, all witnesses, pertinent records, materials the parties hereto shall use commercially reasonable efforts to cooperate in the defense or prosecution of such Third Party Claim. Such cooperation shall include the retention and (upon the Buyer's request) the provision to the Buyer of records and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is which are reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. If the Indemnifying Buyer shall have assumed the defense of a Third Party Claim, the Indemnitee shall cooperate not admit any liability with the Indemnified Party in such defense and make available to the Indemnified Partyrespect to, at the Indemnifying Party’s expenseor settle, all such witnessescompromise or discharge, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the Buyer's prior written consent (which consent shall not be unreasonably withheld). The Buyer shall not admit any liability with respect to or settle any Third Party Claim on behalf of Seller without the Indemnified PartySeller's prior written consent (which consent shall not be unreasonably withheld).
Appears in 1 contract
Procedures Relating to Indemnification. (a) Any party seeking In order for an Indemnitee to be entitled to any indemnification under Section 6.01 (an “Indemnified Party”) shall promptly give the Party from whom indemnification is being sought (an “Indemnifying Party”) notice of any matter which such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification provided for under this Agreement stating in respect of, arising out of or involving a claim made by any Person who is not an Indemnitee against the Indem- ▇▇▇▇▇ (a "Third Party Claim"), such Indemnitee must notify the party who may become obligated to provide Indemnification hereunder (the "indemnifying party") in writing, and in reasonable detail the factual basis detail, of the claim Third Party Claim promptly; provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent known the indemnifying party shall have been prejudiced as a result of such failure. After any required notification (if applicable), 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 Indemnified PartyIndemnitee relating to the Third Party Claim.
(b) If a Third Party Claim is made against an Indemnitee, the indemnifying party will be entitled to participate in the defense thereof and, if it so chooses, 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 expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided that if, under applicable standards of professional conduct (as advised by counsel to the indemnifying party), a conflict on any significant issue between the Indemnitee and the indemnifying party or between any two or more Indemnities exists in respect of such Third Party Claim, the indemnifying party shall pay the reasonable fees and expenses of one such additional counsel as may be required to be retained in order to resolve such conflict. If the indemnifying party assumes such defense, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the Indemnitee shall have failed to give notice of the Third Party Claim as provided above). If the indemnifying party chooses to defend or prosecute a Third Party Claim, all the parties hereto shall cooperate in the defense or prosecution thereof, which cooperation shall include the retention and the provision to the indemnifying party of records and information which are reasonably relevant to such Third Party Claim, and containing making employees available on a reference mutually convenient basis to provide additional information and explanation of any material provided hereunder. If the provisions indemnifying party chooses to defend or prosecute any Third Party 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 liability in connection with such Third Party Claim; provided, however, that, without the Indemnitee's consent, the indemnifying party shall not consent to entry of any judgement or enter into any settlement (x) that provides for injunctive or other non-monetary relief affecting the Indemnitee or (y) that does not include as an unconditional term thereof the giving by each claimant or plaintiff to such Indemnitee of a release from all liability with respect to such claim. Whether or not the indemnifying party shall have assumed the defense of a Third Party Claim, the Indemnitee shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the indemnifying party's prior written consent.
(c) In order for an Indemnitee to be entitled to any indemnification provided for under this Agreement in respect of which such right of indemnification is claimed or arises; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent the Indemnifying Party is materially prejudiced by such failure. With respect to any recovery or indemnification sought by an Indemnified Party from the Indemnifying Party a claim that does not involve a Third Party Claim, if the Indemnifying Party does not notify the Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party Indemnitee shall be deemed to have accepted and agreed with such claim.
(b) If an Indemnified Party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such notice, the Indemnified Party shall give the Indemnifying Party deliver notice of such Third Party Claim; provided that claim with reasonable promptness to the indemnifying party. The failure by any Indemnitee to provide such notice so notify the indemnifying party shall not release relieve the Indemnifying Party indemnifying party from any of its obligations liability which it may have to such Indemnitee under this Article VI Agreement, except to the extent that the Indemnifying Party is materially indemnifying party shall have been actually prejudiced by such failure. Any notice pursuant to this Section 10.4 shall state, in conspicuous type, that if the indemnifying party does not dispute its liability to the Indemnitee with respect to the claim made in such notice (the 50 "Claim") by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the indemnifying party's receipt of the second notice of the Claim, the Claim shall be conclusively deemed a liability of the indemnifying party. If the Indemnifying Party acknowledges Indemnitee has provided the indemnifying party two (2) such notices not less than thirty (30) days apart and the indemnifying party does not notify the Indemnitee prior to the expiration of a 30-calendar-day period following its receipt of the second such notice that the indemnifying party disputes its liability to the Indemnitee under this Agreement, the Claim shall be conclusively deemed a liability of the indemnifying party under this Agreement and the indemnifying party shall pay the amount of such liability to the Indemnitee on demand or, in writing 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 the Claim (or any portion thereof) becomes finally determined. If the indemnifying party has timely disputed its obligation liability with respect to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then the Indemnifying Party shall be entitled to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party indemnifying party and the Indemnitee shall cooperate with proceed in good faith to negotiate resolution of the Indemnifying Party in Claim and, if the Claim is not resolved through negotiations, such defense and make Indemnitee shall be free to pursue such remedies as may be available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or it under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified Partyapplicable law.
Appears in 1 contract
Procedures Relating to Indemnification. (a) Any party seeking indemnification An indemnified person under Section 6.01 Sections 8.02 or 8.03, (an the “Indemnified Party”) shall promptly give prompt written notice to an indemnifying party (the Party from whom indemnification is being sought (an “Indemnifying Party”) notice of any matter which such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement Loss in respect of which such right Indemnifying Party has a duty to indemnify such Indemnified Party under Section 8.02 or 8.03 (a “Claim”), specifying in reasonable detail the nature of loss, liability, damage, claim, suit, judgment or expense for which indemnification is claimed sought, the section or arises; provided sections of this Agreement to which the Claim relates, and, if practicable, the amount of such Claim, except that the any delay or failure so to provide such notice shall not release notify the Indemnifying Party from any shall only relieve the Indemnifying Party of its obligations under this Article VI except hereunder to the extent extent, if at all, that it is prejudiced by reason of such delay or failure.
(b) If a Claim is brought or asserted by a third party (a “Third Party Claim”), the Indemnifying Party is materially prejudiced shall assume the defense thereof, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of all expenses. The Indemnified Party shall have the right to employ separate counsel in such Third Party Claim and participate in such defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. In the event that the Indemnifying Party, within a reasonable time after notice of any Third Party Claim fails to assume the defense thereof, the Indemnified Party shall have the right to undertake the defense, compromise or settlement of such Third Party Claim for the account of the Indemnifying Party, subject to the right of the Indemnifying Party to assume the defense of such Third Party Claim with counsel reasonably satisfactory to the Indemnified Party at any time prior to the compromise, settlement or final determination thereof. Anything in this Section 8.04 to the contrary notwithstanding, the Indemnifying Party shall not, without the Indemnified Party’s prior written consent, settle or compromise any Third Party Claim or consent to the entry of any judgment with respect to any Third Party Claim which would have an adverse effect on the Indemnified Party. The Indemnifying Party may, without the Indemnified Party’s prior written consent, compromise or settle any such Third Party Claim or consent to entry of any judgment with respect to any Third Party Claim which requires solely money damages paid by the Indemnifying Party, and which includes as an unconditional term thereof the release by the claimant or the plaintiff of the Indemnified Party from all liability in respect of such failure. Third Party Claim.
(c) With respect to any recovery or indemnification sought by an Indemnified Party from the Indemnifying Party that does not involve Claim other than a Third Party Claim, if the Indemnifying Party does not notify the Indemnified Party within thirty (30) shall have twenty days from its receipt of the notice from the Indemnified Party that of such clam within which to respond thereto. If the Indemnifying Indemnified Party disputes does not respond within such claimtwenty-day period, the Indemnifying Party shall be deemed to have accepted responsibility to make payment and agreed with shall have no further right to contest the validity of such claim.
(b) Claim. If an the Indemnifying Party notifies the Indemnified Party shall receive notice of any claim within such twenty-day period that it rejects such Claim in whole or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such noticein part, the Indemnified Party shall give the Indemnifying Party notice of be free to pursue such Third Party Claim; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that remedies as may result from such Third Party Claim, then the Indemnifying Party shall be entitled to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so available to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified Partyapplicable law.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Lincoln National Corp)
Procedures Relating to Indemnification. (a) Any In order for an Indemnitee to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim made by any Person who is not an Indemnitee against the Indemnitee (a “Third Party Claim”), such Indemnitee must notify the party seeking who may become obligated to provide indemnification under Section 6.01 hereunder (an “Indemnified Party”) shall promptly give the Party from whom indemnification is being sought (an “Indemnifying Party”) in writing, and in reasonable detail, of the Third Party Claim reasonably promptly, and in any event within 20 business days after receipt by such Indemnitee of written notice of any matter which such Indemnified the Third Party has determined has given or would reasonably be expected Claim; provided, however, that failure to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises; provided that the failure to provide such notice notification shall not release affect the Indemnifying Party from any of its obligations under this Article VI indemnification provided hereunder except to the extent the Indemnifying Party is shall have been actually and materially prejudiced by as a result of such failure. With ; provided further, however, that with respect to any recovery Third Party Claim for which Newco or indemnification sought any Newco Subsidiary Indemnitor is the Indemnifying Party, such Indemnifying Party shall be deemed to have received notice with respect to such Third Party Claim by or against any Sunrise Company for which the Company received notice prior to the Effective Time. After any required notification (if applicable), 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.
(b) If a Third Party Claim is made against an Indemnified Party from Indemnitee, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so chooses, 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 expenses subsequently incurred by the Indemnitee in connection with the defense thereof. If the Indemnifying Party assumes such defense, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for the reasonable fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has not assumed the defense thereof (other than during any period in which the Indemnitee shall have failed to give notice of the Third Party Claim as provided above). Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable 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 related claim for money damages. The indemnification required by Section 2.01, 2.02 or 2.03, as the case may be, shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or the Indemnifiable Loss is incurred. If the Indemnifying Party chooses to defend or prosecute a Third Party Claim, all the parties hereto reasonably necessary for such defense or prosecution shall cooperate in the defense or prosecution thereof, which cooperation shall include the retention in accordance with the Restructuring Agreement and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. If the Indemnifying Party chooses to defend or prosecute any Third Party 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 liability in connection with such Third Party Claim; provided, however, that, without the Indemnitee’s consent, the Indemnifying Party shall not consent to entry of any judgment or enter into any settlement (x) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or (y) that does not include as an unconditional term thereof the giving by each claimant or plaintiff to such Indemnitee of a release from all liability with respect to such claim. If the Indemnifying Party shall have assumed the defense of a Third Party Claim, the Indemnitee shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld).
(c) In order for an Indemnitee to be entitled to any indemnification provided for under this Agreement in respect of a claim that does not involve a Third Party Claim, if the Indemnitee shall deliver notice of such claim (in reasonably sufficient detail to enable the Indemnifying Party does not notify the Indemnified Party within thirty (30to evaluate such claim) days from its receipt of the notice from the Indemnified Party that with reasonable promptness to the Indemnifying Party disputes such claim, Party. The failure by any Indemnitee so to notify the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
(b) If an Indemnified Party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such notice, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided that the failure to provide such notice shall not release relieve the Indemnifying Party from any of its obligations liability which it may have to such Indemnitee under this Article VI Agreement, except to the extent that the Indemnifying Party is shall have been actually and materially prejudiced by such failure. If the Indemnifying Party acknowledges in writing does not notify the Indemnitee within 20 business days following its obligation receipt of such notice that the Indemnifying Party disputes its liability with respect to indemnify such claim under Section 2.01, 2.02 or 2.03, as the Indemnified case may be, the claim shall be conclusively deemed a liability of the Indemnifying Party hereunder against any Losses that under Section 2.01, 2.02 or 2.03, as the case may result from such Third Party Claimbe, then and the Indemnifying Party shall be entitled to assume and control pay the defense amount of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so liability to the Indemnified Party within fifteen (15) days Indemnitee on demand or, in the case of any notice in which the amount of the receipt claim (or any portion thereof) is estimated, on such later date when the amount of such notice from the Indemnified Party; provided that that if there exists claim (or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expensesuch portion thereof) becomes finally determined. In the event that If the Indemnifying Party exercises the right has timely disputed its liability with respect to undertake any such defense against any such Third Party Claim claim, as provided above, the Indemnified Party shall cooperate with the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such defense dispute and, if not resolved through negotiations, such dispute shall be resolved by litigation in an appropriate court of competent jurisdiction.
(d) The parties hereto agree that Newco shall be the representative of the Newco Subsidiary Indemnitors for all purposes of this Section 2.04, and make available as such all deliveries, notices and other communications made or delivered to Newco shall also be deemed to have been made or delivered to the Indemnifying PartyNewco Subsidiary Indemnitors, at the Indemnifying Party’s expenseand all elections, all witnessesselections of counsel, pertinent recordschoices, materials agreements and information in the Indemnified Party’s possession consents made or under the Indemnified Party’s control relating thereto as is reasonably required delivered by Newco shall be deemed to have also been made or delivered by the Indemnifying Partyapplicable Newco Subsidiary Indemnitors, and shall be binding thereon. Similarly, in Notwithstanding the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claimforegoing, the Indemnifying Party parties hereto agree that nothing contained in this Section 2.04(d) shall cooperate with in any manner affect, limit or impair the Indemnified Party in rights of the Parent Indemnitees to indemnification from Newco or any Newco Subsidiary Indemnitor pursuant to Section 2.01.
(e) The parties hereto agree that the Company shall be the representative of the Sunrise Companies for all purposes of this Section 2.04, and as such defense all deliveries, notices and make available other communications made or delivered to the Indemnified PartyCompany shall also be deemed to have been made or delivered to the Sunrise Companies, at the Indemnifying Party’s expenseand all elections, all such witnessesselections of counsel, recordschoices, materials agreements and information in the Indemnifying Party’s possession consents made or under the Indemnifying Party’s control relating thereto as is reasonably required delivered by the Indemnified Party. No such Third Party Claim may Company shall be settled deemed to have also been made or delivered by the Indemnifying Party without applicable Sunrise Company, and shall be binding thereon. Notwithstanding the prior written consent foregoing, the parties hereto agree that nothing contained in this Section 2.04(e) shall in any manner affect, limit or impair the rights of the Indemnified PartyNewco Indemnitees to indemnification from any Sunrise Company pursuant to Section 2.02.
Appears in 1 contract
Sources: Post Closing Covenants Agreement (Inverness Medical Innovations Inc)
Procedures Relating to Indemnification. 13.6.1 In order for a party (athe "INDEMNIFIED PARTY") Any party seeking to be entitled to any indemnification under Section 6.01 (an “Indemnified Party”) shall promptly give the Party from whom indemnification is being sought (an “Indemnifying Party”) notice of any matter which such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations for under this Article VI 13 in respect of, arising out of or involving a claim or demand made by any Person against the indemnified party (a "THIRD PARTY CLAIM"), such indemnified party must notify the indemnifying party in writing, and in reasonable detail, of the Third Party Claim as promptly as reasonably possible after receipt by such indemnified party of notice of the Third Party Claim but in no event later than twenty (20) days; provided, however, that failure to give such notification on a timely basis shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party is materially indemnifying party shall have been actually prejudiced by as a result of such failure. With respect Thereafter, the indemnified party shall deliver to the indemnifying party, as soon as practicable 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.
13.6.2 If a Third Party Claim is made against an indemnified party, the indemnifying party shall be entitled to participate in the defense thereof and, if it so chooses and acknowledges its indemnification responsibility hereunder, to assume the defense thereof with counsel selected by the indemnifying party and reasonably satisfactory to the indemnified party. Notwithstanding any recovery acknowledgment made pursuant to the immediately preceding sentence, the indemnifying party shall continue to be entitled to assert any limitation on its indemnification responsibility contained in the provisos to Section 13.1 or indemnification sought by an Indemnified Party from Section 13.3, as applicable. Should the Indemnifying Party that does not involve indemnifying party so elect to assume the defense of a Third Party Claim, if the Indemnifying Party does indemnifying party shall not notify be liable to the Indemnified Party within thirty (30) days from its receipt indemnified party for legal expenses subsequently incurred by the indemnified party in connection with the defense thereof, unless at the request of the notice indemnifying party. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel, at its own expense (which expense shall not constitute a Loss unless the indemnified party reasonably determines that the indemnifying party is not adequately representing or, because of a conflict of interest, may not adequately represent, any interests of the indemnified party, and only to the extent that such expenses are reasonable), separate from the Indemnified Party counsel employed by the indemnifying party, it being understood, however, that the Indemnifying Party disputes indemnifying party shall control such claim, the Indemnifying Party defense. The indemnifying party shall be deemed liable for the fees and expenses of counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof. If the indemnifying party chooses to have accepted and agreed with such claim.
(b) If an Indemnified Party shall receive notice of defend any claim or demand asserted by a third party (each, a “Third Party Claim”) against it , all the parties hereto shall cooperate in the defense or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such notice, the Indemnified Party shall give the Indemnifying Party notice prosecution of such Third Party Claim; provided that . Such cooperation shall include the failure to provide such notice shall not release retention and (upon the Indemnifying Party from any of its obligations under this Article VI except indemnifying party's request) the provision to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party acknowledges in writing its obligation indemnifying party of records and information which are reasonably relevant to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. In connection with any Third Party Claim which the Indemnifying Party indemnifying party has elected to defend, the indemnifying party shall be entitled to assume and control the not, in defense of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate except with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified Partyindemnified party, consent to the entry of any judgment or enter into any settlement which provides for any relief other than the payment of monetary damages to be paid solely by the indemnifying party and which does not include as an unconditional term thereof the giving to the indemnified party by the claimant or plaintiff of such Third Party Claim of a release from all liability in respect thereof. Whether or not the indemnifying party shall have assumed the defense of a Third Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the indemnifying party's prior written consent (which consent shall not be unreasonably withheld).
Appears in 1 contract
Sources: Stock & Asset Purchase Agreement (Imperial Sugar Co /New/)
Procedures Relating to Indemnification. (a) Any If an indemnified party seeking indemnification under Section 6.01 (an “Indemnified Party”) shall promptly give the Party from whom indemnification is being sought (an “Indemnifying Party”) receives notice or otherwise learns of any matter claim or demand made by a Person (other than a Party or its Affiliate) with respect to which an indemnifying party may be obligated to provide indemnification hereunder (collectively, a “Third-Party Claim”), such Indemnified indemnified party will give such indemnifying party prompt written notice thereof (a “Claim Notice”). Any such notice will describe the Third-Party has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement stating Claim in reasonable detail detail, stating the factual nature, basis of for indemnification and the claim amount thereof, to the extent known by known, along with copies of any relevant documents evidencing such Third-Party Claim. Notwithstanding the Indemnified Partyforegoing, and containing a reference the delay or failure of any indemnified party or other Person to give notice as provided in this Section 6.4(a) will not relieve the provisions of this Agreement in respect of which such right of indemnification is claimed or arises; provided that the failure to provide such notice shall not release the Indemnifying Party from any related indemnifying party of its obligations under this Article VI VI, except to the extent the Indemnifying Party that such indemnifying party is actually and materially prejudiced by such failure. With respect delay or failure to any recovery or indemnification sought by an Indemnified Party from the Indemnifying Party that does not involve a Third Party Claim, if the Indemnifying Party does not notify the Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claimgive notice.
(b) If an Indemnified Party shall receive The indemnifying party has the right, exercisable by written notice to the indemnified party within 45 days after receipt of a Claim Notice from the indemnified party of the commencement or assertion of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such notice, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Third-Party Claim, then the Indemnifying Party shall be entitled to assume and control conduct the defense of such Third Third-Party Claim at in accordance with the limits set forth in this Agreement with counsel selected by the indemnifying party, provided, however, that (i) the Third-Party Claim does not relate to or arise in connection with any criminal proceeding, action, indictment, allegation or investigation and (ii) the Third-Party Claim solely seeks (and continues to seek) monetary damages and/or equitable relief (with or without monetary damages) which equitable relief would not reasonably be expected to adversely affect the operations of (A) Seller or its expense Affiliates, if Buyer is the indemnifying party, or (B) Buyer or its Affiliates, if Seller is the indemnifying party (the conditions set forth in clauses (i) and through counsel (ii) are, collectively, the “Litigation Conditions”). If the indemnifying party does not assume the defense of its choice if it gives notice a Third-Party Claim in accordance with this Section 6.4(b), the indemnified party may continue to defend the Third-Party Claim. If the indemnifying party has assumed the defense of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Third-Party Claim as provided abovein this Section 6.4(b), the Indemnified Party shall cooperate indemnifying party will not be liable for any legal expenses subsequently incurred by the indemnified party in connection with the Indemnifying defense of the Third-Party in Claim; provided, however, that if (x) any of the Litigation Conditions ceases to be met or (y) the indemnifying party fails to take reasonable steps necessary to defend diligently such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Third-Party Claim, the Indemnifying Party shall cooperate indemnified party may assume its own defense, and the indemnifying party will be liable for all reasonable costs or expenses thereafter incurred in connection with such defense. The indemnifying party or the Indemnified Party indemnified party, as the case may be, has the right to participate in such defense and make available (but, subject to the Indemnified Partyprior sentence, not control), at the Indemnifying Party’s its own expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third defense of any Third-Party Claim that the other is defending as provided in this Agreement. The indemnifying party, if it has assumed the defense of any Third-Party Claim as provided in this Agreement, may be settled by the Indemnifying Party not, without the prior written consent of the Indemnified Partyindemnified party, consent to a settlement of, or the entry of any judgment arising from, any such Third-Party Claim that does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the indemnified party of a complete release from all liability in respect of such Third-Party Claim. The indemnified party has the right to settle any Third-Party Claim, the defense of which has not been assumed by the indemnifying party, with the prior written consent of the indemnifying party (such consent not to be unreasonably withheld, conditioned or delayed).
(c) The indemnifying party and the indemnified party shall cooperate in all aspects of any investigation, defense, pretrial activities, trial, compromise, settlement or discharge of any claim in respect of which indemnity is sought under this Article VI, including by providing the other party with reasonable access to employees and officers (including as witnesses) and other information.
Appears in 1 contract
Sources: Share Purchase Agreement (Institutional Financial Markets, Inc.)
Procedures Relating to Indemnification. (a) Any In order for an indemnified party seeking to be entitled to any indemnification under Section 6.01 (an “Indemnified Party”) shall promptly give the Party from whom indemnification is being sought (an “Indemnifying Party”) notice of any matter which such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification provided for under this Agreement stating Article 9 in respect of, arising out of or involving a claim or demand made by any Person, Governmental Authority or corporation against the indemnified party (a “Third-Party Claim”), such indemnified party shall notify the indemnifying party in writing, and in reasonable detail the factual basis of the claim to the extent known known, of the Third-Party Claim promptly after receipt by such indemnified party of notice of the Indemnified PartyThird-Party Claim; provided, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises; provided however, that the failure to provide give such notice notification shall not release affect the Indemnifying Party from any of its obligations under this Article VI indemnification provided hereunder except to the extent the Indemnifying Party is indemnifying party shall have been materially prejudiced by as a result of such failure. With respect The indemnified party shall deliver to any recovery or indemnification sought the indemnifying party, within 15 Business Days after the indemnified party’s receipt thereof, copies of all notices and documents (including court papers) received by an Indemnified Party from the Indemnifying Party that does not involve a Third indemnified party relating to the Third-Party Claim, if the Indemnifying Party does not notify the Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
(b) If a Third-Party Claim is made against an Indemnified Party indemnified party, and the indemnifying party acknowledges in writing to the indemnified party that the indemnifying party shall receive notice be obligated under the terms of any claim or demand asserted by a third party (each, a “Third its indemnity hereunder in connection with such Third-Party Claim”, then the indemnifying party shall be entitled if it so elects, at its own cost, risk and expense, to assume the defense thereof with counsel selected by the indemnifying party and reasonably satisfactory to the indemnified party; provided that, the indemnifying party shall not have the right to assume control of such defense if the Third-Party Claim which the indemnifying party seeks to assume control (i) against it or which may give rise to seeks non-monetary relief, (ii) involves criminal allegations, (iii) involves a claim for Loss under this Article VIwhich the defense of such claim by the indemnifying party would reasonably be expected to prejudice the indemnified party in such Proceeding, within thirty (30iv) days involves a claim that the indemnifying party failed or is failing to diligently prosecute or defend, or (v) the Third-Party Claim seeks damages in excess of the Cap. The indemnifying party will have 30 calendar days from receipt of any such notice of a Third-Party Claim to give notice to the indemnified party of the indemnifying party’s intentions to assume the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel (which such counsel shall be employed at its own expense) provided, that, if (x) there are legal defenses available to an indemnified party that are different from or additional to those available to the indemnifying party, or (y) under applicable standards of professional conduct a conflict of interest exists between the indemnifying party and the indemnified party in respect of such Third-Party Claim, then the indemnifying party shall be responsible for the reasonable fees and expenses of counsel to the indemnified party. In the event the indemnifying party assumes the defense of a Third-Party Claim, the indemnifying party will keep the indemnified party reasonably informed of the progress of such defense, including any proposed compromise or settlement. Any compromise or settlement of a Third-Party Claim by the indemnifying party shall be made only with the written Consent of the indemnified party, such consent not to be unreasonably withheld; provided, however, that the indemnified party’s consent shall not be deemed to be unreasonably withheld if such compromise or settlement (i) would restrict or adversely affect the indemnified party or the conduct of any of its or its Affiliates’ businesses; (ii) would include an admission of wrongdoing or misconduct by the indemnified party; (iii) does not provide for a full release of the indemnified party for all claims relating to such Third-Party Claim; (iv) involves any claim for which the indemnified party is not fully indemnified by the indemnifying party; or (v) imposes any injunctive or other equitable relief against the indemnified party. If the indemnifying party fails to assume the defense of a Third-Party Claim within 30 calendar days after receipt of such notice, the Indemnified indemnified party against which such Third-Party Claim has been asserted will have the right to undertake, at the indemnifying party’s cost and expense, the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party. In the event the indemnified party controls the defense of the Third-Party Claim, the indemnified party will keep the indemnifying party reasonably informed of the progress of any such defense, compromise or settlement. The parties hereto agree to cooperate in the defense or prosecution of any Third-Party Claim. Such cooperation shall give include the Indemnifying retention and provision of records and information that are relevant to such Third-Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The indemnifying party shall be liable for any settlement of any action effected pursuant to and in accordance with this Section 9.5 and for any final Judgment (subject to any right of appeal), and the indemnifying party agrees to indemnify and hold harmless any indemnified party from and against any Losses by reason of such settlement or Judgment.
(c) The indemnified party will notify the indemnifying party in writing as soon as practicable of its discovery of any matter or condition that does not involve a Third-Party Claim being asserted against or sought to be collected from the indemnified party, giving rise to the claim of indemnity pursuant hereto (a “Non-Third Party Claim”). The failure so to notify the indemnifying party shall not relieve the indemnifying party from liability on account of this indemnification, except only if and to the extent that the indemnifying party demonstrates actual damage caused by such failure. The indemnifying party will have 30 calendar days from receipt of any such notice of claim of indemnification to give written notice to the indemnified party of the indemnifying party’s objection to any of the subject matters or any of the Losses set forth in the notice of the claim of indemnification. The indemnified party will reasonably cooperate and assist the indemnifying party in determining the validity of any claim for indemnity by the indemnified party and in otherwise resolving such matters. Such assistance and cooperation will include providing reasonable access to and copies of information, records and documents relating to such matters, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(d) With respect to the Seller Parties’ satisfaction of their indemnification obligations:
(i) In the event the claim for indemnification relates to a Third Party Claim, Buyer shall deliver to Seller promptly following Buyer’s final resolution of such Third Party Claim a notice describing, in reasonable detail, (x) the amount of any Losses attributable to such Third Party Claim and (y) the facts regarding the nature of the Third Party Claim and the final resolution thereof. Buyer shall not proceed to reduce any amounts set forth in this Section 9.5(d)(i) prior to the date that is 30 calendar days following Seller’s receipt of such notice. Buyer shall first reduce and retain from the then available Holdback Cash Amount an amount equal to the amount of Losses attributable to such Third Party Claim; provided that provided, that, if the failure to provide amount of such notice Losses exceeds the then available Holdback Cash Amount, Buyer shall not release retain the Indemnifying Party from any then available Holdback Cash Amount and the Seller Parties shall pay promptly the Buyer Indemnitee an amount of its obligations under this Article VI except cash equal to the extent that Losses attributable to such Third Party Claim less the Indemnifying amount of the Holdback Cash Amount used to partially satisfy the Seller Parties’ indemnification obligation, by wire transfer of immediately available funds to an account designated by Buyer. In the event the Seller Parties fail to promptly make such cash payment, Buyer may satisfy any unsatisfied Losses related to such Third Party Claim by retaining the number of shares of the Holdback Stock Amount equal to the Applicable Indemnity Share Amount; provided, that, if the Applicable Indemnity Share Amount is materially prejudiced greater than the then available Holdback Stock Amount (such amount, the “Excess Amount”), then Buyer (or Parent, as the case may be) shall (A) retain the number of shares of the then available Holdback Stock Amount and (B) cancel (and the Seller Parties expressly acknowledge Parent’s right to cancel) the number of shares of Parent Stock held by such failure. If the Indemnifying Party acknowledges in writing its obligation Seller Parties (or any permitted transferee thereof) equal to indemnify the Indemnified Party hereunder against any Losses that may result from such Excess Amount.
(ii) In the event the claim for indemnification relates to a Non-Third Party Claim, then Seller shall have 30 days following the Indemnifying Party shall be entitled to assume and control the defense receipt of such any notice of a Non-Third Party Claim at its expense and through counsel of its choice if it gives to provide Buyer written notice of its intention the Seller Parties’ election (an “Election Notice”) to do so satisfy the Losses related to such Non-Third Party Claim with shares of Parent Stock. With respect to the Indemnified final resolution of a Non-Third Party within fifteen Claim, Buyer shall deliver to Seller promptly following Buyer’s final resolution of such Non-Third Party Claim a notice describing, in reasonable detail, (15x) days the amount of any Losses attributable to such Non-Third Party Claim and (y) the facts regarding the nature of the Non-Third Party Claim and the final resolution thereof. Buyer shall not proceed to reduce any amounts set forth in this Section 9.5(d)(ii) prior to the date that is 30 calendar days following Seller’s receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expensenotice. In the event that shares of the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make Holdback Stock Amount are available to satisfy the Indemnifying PartySeller Parties’ indemnification obligation, at Buyer shall first reduce the Indemnifying Party’s expensenumber of shares of the then available Holdback Stock Amount by an amount of shares equal to the Applicable Indemnity Share Amount; provided, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarlythat, in the event the Indemnified Party isApplicable Indemnity Share Amount is greater than the then available shares of the Holdback Stock Amount, directly then Buyer (or indirectlyParent, conducting as the defense against case may be) shall (A) retain the number of shares of the then available Holdback Stock Amount and (B) cancel (and the Seller Parties expressly acknowledge Parent’s right to cancel) the number of shares of Parent Stock held by the Seller Parties (or any permitted transferee thereof) equal to the Excess Amount; provided, further, that, if the Excess Amount exceeds the number of shares of Parent Stock available to be cancelled, Buyer shall retain from the available Holdback Cash Amount an amount of cash equal to such excess, provided, that, if such excess amount exceeds the then available Holdback Cash Amount, Buyer shall retain the then available Holdback Cash Amount and the Seller Parties shall pay promptly to the Buyer Indemnitee an amount equal to such excess amount, by wire transfer of immediately available funds to an account designated by Buyer.
(iii) In the event the claim for indemnification relates to a Non-Third Party Claim, and Seller does not provide Buyer with an Election Notice within 30 days following Seller’s receipt of the Indemnifying notice of a Non-Third Party Claim, then, upon final resolution of such Non-Third Party, Buyer shall cooperate with first reduce and retain from the Indemnified Party in such defense and make then available Holdback Cash Amount an amount equal to the Indemnified Partyamount of Losses attributable to such Non-Third Party Claim; provided, at that, if the Indemnifying Party’s expenseamount of such Losses exceeds the then available Holdback Cash Amount, all Buyer shall retain the then available Holdback Cash Amount and the Seller Parties shall pay promptly the Buyer Indemnitee an amount of cash equal to the Losses attributable to such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Non-Third Party Claim less the amount of the Holdback Cash Amount used to partially satisfy the Seller Parties’ indemnification obligation, by wire transfer of immediately available funds to an account designated by Buyer. In the event the Seller Parties fail to promptly make such cash payment, Buyer may be settled satisfy any unsatisfied Losses related to such Non-Third Party Claim by retaining the number of shares of the Holdback Stock Amount equal to the Applicable Indemnity Share Amount; provided, that, if the Applicable Indemnity Share Amount is greater than the then available Holdback Stock Amount, then Buyer (or Parent, as the case may be) shall (A) retain the number of shares of the then available Holdback Stock Amount and (B) cancel (and the Seller Parties expressly acknowledge Parent’s right to cancel) the number of shares of Parent Stock held by the Indemnifying Seller Parties (or any permitted transferee thereof) equal to the Excess Amount.
(e) This Section 9.5 shall not apply to any Third-Party without the prior written consent of the Indemnified PartyClaim relating to Taxes.
Appears in 1 contract
Procedures Relating to Indemnification. (a) Any party seeking In order for an Indemnified Party to be entitled to any indemnification provided for under Section 6.01 this Agreement in respect of, arising out of or involving a claim or demand made by any Person who is not an Indemnifying Party against an Indemnified Party (an “Indemnified Party”) shall promptly give the a "Third Party from whom indemnification is being sought (an “Indemnifying Party”) notice of any matter which Claim"), such Indemnified Party has determined has given or would must notify the Indemnifying Party in writing of the Third Party Claim reasonably be expected to give rise to a right promptly after receipt by such Indemnified Party of indemnification under this Agreement stating written notice of the Third Party Claim, specifying in reasonable detail the factual basis nature of such Third Party Claim (the claim to the extent known by the Indemnified Party"Claim Notice"); PROVIDED, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises; provided HOWEVER, that the failure to provide give such notice notification shall not release affect the Indemnifying Party from any of its obligations under this Article VI indemnification provided hereunder except to the extent the Indemnifying Party is materially shall have been actually prejudiced by as a result of such failure. With failure and that with respect to any recovery matter for which U S WEST is the Indemnifying Party, U S WEST shall be deemed to have received notice with respect to all matters by or against the Domestic Wireless Business as to which any claim or demand to U S WEST or any of its Subsidiaries shall have been made before or at the Effective Time.
(b) If a Third Party Claim is made against an Indemnified Party, the Indemnifying Party shall have 30 days (or less if the nature of the Third Party Claim requires) from its receipt of the Claim Notice (the "Notice Period") to notify the Indemnified Party whether or not the Indemnifying Party desires, at the Indemnifying Party's sole cost and expense and by counsel of its own choosing (and reasonably acceptable to the Indemnified Party), to defend against such Third Party Claim; PROVIDED, HOWEVER, that if, under applicable standards of professional conduct a conflict on any significant issue between the Indemnifying Party and any Indemnified Party exists in respect of such Third Party Claim, then the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of one outside counsel, plus any local counsel, who shall be reasonably acceptable to the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof (other than during any period in which the Indemnified Party shall have failed to give notice of the Third Party Claim as provided above). Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the fees and expenses of counsel, who shall be reasonably acceptable to the Indemnifying Party, and related expenses incurred by the Indemnified Party in defending such Third Party Claim) if the Third Party Claim either (i) is a Specified Action and the Indemnified Party or Indemnifying Party reasonably determines that the Indemnified Party's residual liability with respect to such Specified Action (after giving effect to any potential indemnification sought under Section 11.1(a)(ii)) may exceed 50% of the aggregate liability in respect of such Specified Action or (ii) seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party which the Indemnified Party reasonably determines cannot be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. The indemnification required by Section 11.1 or 11.2, as the case may be, shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or the Indemnifiable Loss is incurred. If the Indemnifying Party chooses to defend or prosecute any Third Party Claim (and is permitted hereunder to do so), the Indemnified Party 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 liability in connection with such Third Party Claim; PROVIDED, HOWEVER, that, without the Indemnified Party's consent, the Indemnifying Party shall not consent to entry of any judgment or enter into any settlement (x) that provides for injunctive or other nonmonetary relief affecting the Indemnified Party or (y) that does not include as an unconditional term thereof the giving by each claimant or plaintiff to such Indemnified Party of a release from all liability with respect to such claim. If the Indemnifying Party elects not to defend against such Third Party Claim or is not permitted to defend against such claim in the circumstances described above, then the Indemnifying Party shall have the right to participate in any such defense at its sole cost and expense, but the Indemnified Party shall control the investigation, defense and settlement thereof at the reasonable cost and expense of the Indemnifying Party. Whether or not the Indemnifying Party shall have assumed or is permitted to assume the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld). The parties hereto shall cooperate in the defense or prosecution of any Third Party Claim, which cooperation shall include the retention and (upon the Indemnifying Party's request) the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Any Disputes between the Indemnifying Party and the Indemnified Party under this Section 11.3(b) shall be resolved in the manner provided in Section 12.14.
(c) In the event that an Indemnified Party from should have a claim against the Indemnifying Party that hereunder which does not involve a Third Party Claim, if the Indemnified Party shall send a Claim Notice with respect to such claim to the Indemnifying Party with reasonable promptness. The failure by any Indemnified Party so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnified Party under this Agreement, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure. The Indemnifying Party shall have 30 days from the date such Claim Notice is delivered during which to notify the Indemnified Party in writing of any good faith objections it has to the Indemnified Party's Claim Notice or claims for indemnification, specifying in reasonable detail each of the Indemnifying Party's objections thereto. If the Indemnifying Party delivers such written notice of objection within such 30-day period, the Indemnifying Party and the Indemnified Party shall attempt in good faith to negotiate a resolution of such Dispute. If the Indemnifying Party and the Indemnified Party are unable to negotiate a resolution of such Dispute within 30 days after the delivery by the Indemnifying Party of such written notice of objection, such Dispute shall be resolved in the manner provided in Section 12.14. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) 30 days from following its receipt of the such notice from that the Indemnified Party that disputes its liability with respect to such claim under Section 11.1 or 11.2, as the case may be, the claim shall be conclusively deemed a liability of the Indemnifying Party disputes such claimunder Section 11.1 or 11.2, as the case may be, and the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
(b) If an Indemnified Party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of pay the receipt amount of such notice, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then the Indemnifying Party shall be entitled to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so liability to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarlyon demand or, in the event case of any notice in which the Indemnified Party isamount of the claim (or any portion thereof) is estimated, directly on such later date when the amount of such claim (or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified Partyportion thereof) becomes finally determined.
Appears in 1 contract
Sources: Merger Agreement (Us West Inc)
Procedures Relating to Indemnification. (ai) Any party seeking In order for Buyer to be entitled to any indemnification provided for under Section 6.01 (an “Indemnified Party”) shall promptly give the Party from whom indemnification is being sought (an “Indemnifying Party”) notice of any matter which such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement in respect of which a breach of Section 4(p), arising out of or involving a claim or demand made by any person, firm, governmental authority or corporation against Buyer (a "Third Party Claim"), Buyer must notify the Sellers in writing, and in reasonable detail, of the Third Party Claim as promptly as reasonably possible after receipt by such right Buyer of indemnification is claimed or arisesnotice of the Third Party Claim; provided provided, however, that the failure to provide give such notice notification on a timely basis shall not release affect the Indemnifying Party from any of its obligations under this Article VI indemnification provided hereunder except to the extent the Indemnifying Party is materially Sellers shall have been actually prejudiced by as a result of such failure. With respect Thereafter, Buyer shall deliver to the Sellers, within five business days after the indemnified party's receipt thereof, copies of all notices and documents (including court papers) received by Buyer relating to the Third Party Claim.
(ii) If a Third Party Claim is made against Buyer, the Sellers shall be entitled to participate in the defense thereof and, if they so choose and acknowledge their obligation to indemnify Buyer therefor, to assume the defense thereof with counsel selected by the Sellers and reasonably satisfactory to Buyer. Notwithstanding any recovery or acknowledgment made pursuant to the immediately preceding sentence, the Sellers shall continue to be entitled to assert any limitation on its indemnification sought by an Indemnified Party from responsibility contained in the Indemnifying Party that does not involve provisos to Section 14(a). Should the Sellers so elect to assume the defense of a Third Party Claim, if the Indemnifying Party does Sellers shall not notify be liable to Buyer for legal expenses subsequently incurred by the Indemnified Party within thirty (30) days from Buyer in connection with the defense thereof. If the Sellers assume such defense, Buyer shall have the right to participate in the defense thereof and to employ counsel, at its receipt of the notice own expense, separate from the Indemnified Party counsel employed by the Sellers, it being understood, however, that the Indemnifying Party disputes Sellers shall control such claim, the Indemnifying Party defense. The Sellers shall be deemed liable for the fees and expenses of counsel employed by Buyer for any period during which the Sellers have not assumed the defense thereof. If the Sellers choose to have accepted and agreed with such claim.
(b) If an Indemnified Party shall receive notice of defend any claim or demand asserted by a third party (each, a “Third Party Claim”) against it , all the parties hereto shall cooperate in the defense or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such notice, the Indemnified Party shall give the Indemnifying Party notice prosecution of such Third Party Claim; provided that . Such cooperation shall include the failure to provide such notice shall not release retention and (upon the Indemnifying Party from any of its obligations under this Article VI except Sellers' request) the provision to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party acknowledges in writing its obligation Sellers of records and information which are reasonably relevant to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the Indemnifying Party Sellers shall be entitled to assume and control have assumed the defense of a Third Party Claim, Buyer shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the Sellers' prior written consent of the Indemnified Party(which consent shall not be unreasonably withheld).
Appears in 1 contract
Procedures Relating to Indemnification. (a) Any In order for an indemnified party seeking to be entitled to any indemnification under Section 6.01 (an “Indemnified Party”) shall promptly give the Party from whom indemnification is being sought (an “Indemnifying Party”) notice of any matter which such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations for under this Article VI 8 in respect of, arising out of or involving a claim or demand made by any person, firm, governmental authority or corporation against the indemnified party (a "Third-Party Claim"), such indemnified party must notify the indemnifying party in writing, and in reasonable detail, of the Third-Party Claim as promptly as reasonably possible after receipt by such indemnified party of written notice of the Third-Party Claim; provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party is materially indemnifying party shall have been actually prejudiced by as a result of such failure. With respect The indemnified party shall deliver to any recovery or indemnification sought the indemnifying party, within five business days after the indemnified party's receipt thereof, copies of all notices and documents (including court papers) received by an Indemnified Party from the Indemnifying Party that does not involve a Third indemnified party relating to the Third-Party Claim, if the Indemnifying Party does not notify the Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
(b) If a Third-Party Claim is made against an Indemnified Party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such noticeindemnified party, the Indemnified Party shall give indemnifying party will be entitled to participate in the Indemnifying Party notice of such Third Party Claim; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party defense thereof and, if it so chooses and acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claimindemnified party therefor, then the Indemnifying Party shall be entitled to assume the defense thereof with counsel selected by the indemnifying party and control reasonably satisfactory to the indemnified party. Should the indemnifying party so elect to assume the defense of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Third-Party Claim, the Indemnifying indemnifying party will not be liable to the indemnified party for legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof. If the indemnifying party chooses to defend any Third-Party Claim, all the parties hereto shall cooperate with in the Indemnified Party in such defense or prosecution thereof. Such cooperation shall include the retention and make available (upon the indemnifying party's request) the provision to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials indemnifying party of records and information in that are reasonably relevant to such Third-Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the Indemnifying Party’s possession indemnifying party shall have assumed the defense of a Third-Party Claim, the indemnified party shall not admit any liability with respect to, or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No settle, compromise or discharge, such Third Third-Party Claim may be settled by the Indemnifying Party without the indemnifying party's prior written consent of the Indemnified Party(which consent shall not be unreasonably withheld).
Appears in 1 contract
Procedures Relating to Indemnification. (a) Any Promptly after receipt by a party seeking indemnification indemnified under Section 6.01 (an “Indemnified Party”) shall promptly give the Party from whom indemnification is being sought (an “Indemnifying Party”) 7 or 8 above of written notice of any matter which such Indemnified Party has determined has given loss, claim, damage or would reasonably be expected to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement liability in respect of which indemnity may be sought by it hereunder, such right of indemnification indemnified party will, if a claim is claimed or arises; provided that to be made against an indemnifying party, notify the failure indemnifying party thereof in writing, but the omission so to provide such notice shall notify the indemnifying party will not release relieve the Indemnifying Party indemnifying party from any liability (otherwise than under Section 7 or 8 hereof, as the case may be) that it may have to the indemnified party. Thereafter, the indemnified party and the indemnifying party shall consult, to the extent appropriate, with a view to minimizing the cost to the indemnifying party of its obligations under this Article VI except to the extent the Indemnifying Party is materially prejudiced by such failurehereunder. With respect to In case any recovery or indemnification sought by an Indemnified Party from the Indemnifying Party that does not involve a Third Party Claim, if the Indemnifying Party does not notify the Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
(b) If an Indemnified Party shall receive indemnified party receives written notice of any claim loss, claim, damage or demand asserted liability in respect of which indemnity may be sought by a third it hereunder and it notifies the indemnifying party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such noticethereof, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided that the failure indemnifying party will be entitled to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except participate therein, and to the extent that it may elect by written notice delivered to the Indemnifying Party is materially prejudiced by such failure. If indemnified party promptly after receiving the Indemnifying Party acknowledges in writing its obligation to indemnify aforesaid notice from the Indemnified Party hereunder against any Losses that may result from such Third Party Claimindemnified party, then the Indemnifying Party shall be entitled to assume the defense thereof with counsel reasonably satisfactory to the indemnified party; PROVIDED, HOWEVER, that if the parties against which any loss, claim, damage or liability arises include both the indemnified party and control the indemnifying party and the indemnified party shall have reasonably concluded that defenses available to it create a conflict of interest for the counsel selected by the indemnifying party under the code of professional responsibility applicable to such counsel, the indemnified party shall have the right to select one separate counsel to assume such legal defenses and otherwise to participate in the defenses of such loss, claim, damage or liability on behalf of the indemnified party. Upon receipt by the indemnified party of notice from the indemnifying party of its selection so to assume the defense of such Third Party Claim at its expense loss, claim, damage or liability and through approval by the indemnified party of counsel, the indemnifying party shall not be liable to the indemnified party under Section 7 or 8 hereof, as the case may be, for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof unless (i) the indemnified party shall have employed such counsel in connection with the assumption of its choice if it gives legal defenses in accordance with the proviso to the next preceding sentence, (ii) the indemnifying party shall not have employed and continued to employ counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of its intention to do so to the Indemnified Party within fifteen (15) days commencement of the receipt action or (iii) the indemnifying party shall have authorized in writing the employment of such notice from separate counsel for the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in indemnified party at the judgment expense of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Partyindemnifying party. No such Third Party Claim may be settled by the Indemnifying Party indemnifying party shall, without the prior written consent of the Indemnified Partyindemnified party, effect any settlement of any pending or threatened action in respect of which the indemnified party is or is entitled or subject to be a party and the indemnified party is entitled to indemnity hereunder unless such settlement includes an unconditional release of the indemnified party from all liability on any claims that are the subject matter of such action. No indemnifying party shall be liable for any settlement, compromise or consent to the entry of any order adjudicating or otherwise disposing of any loss, claim, damage or liability effected without its consent.
Appears in 1 contract
Sources: Purchase Agreement (Mirant Americas Generating Inc)
Procedures Relating to Indemnification. (a) Any In order for a party seeking (the "INDEMNIFIED PARTY") to be entitled to any indemnification provided for under Section 6.01 (an “Indemnified Party”) shall promptly give the Party from whom indemnification is being sought (an “Indemnifying Party”) notice of any matter which such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement in respect of, arising out of which or involving a claim made by any Person against the Indemnified Party (a "THIRD PARTY CLAIM"), such right Indemnified Party must notify the party with the obligation to indemnify the Indemnified Party under this Agreement (the "INDEMNIFYING PARTY") in writing (and in reasonable detail) of indemnification is claimed or arises; provided that the Third Party Claim promptly (but in no event more than 30 days) following receipt by such Indemnified Party of notice of the Third Party Claim. The failure by any Indemnified Party to provide such notice so notify the Indemnifying Party shall not release relieve the Indemnifying Party from any of its obligations under this Article VI Liability that it may have to such Indemnified Party, except to the extent that the Indemnifying Party is materially demonstrates that it has been actually prejudiced by such failure. With respect Thereafter, the Indemnified Party shall deliver to any recovery or indemnification sought the Indemnifying Party, promptly following the Indemnified Party's receipt thereof, copies of all notices and documents (including court papers) received by the indemnified party relating to the Third Party Claim.
(b) If a Third Party Claim is made against an Indemnified Party, the Indemnifying Party shall be entitled to participate in the defense thereof and, if it so chooses, to assume the defense thereof with counsel selected by the Indemnifying Party; provided, however, that such counsel is not reasonably objected to by the Indemnified Party. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party shall not be liable to the Indemnified Party for any legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right to participate in the defense thereof and to employ counsel (including (i) Weil, Gotshal & ▇▇▇▇▇▇ LLP in the case Protection One is the Indemnified Party, (ii) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ in the case Purchaser is the Indemnified Party and (iii) any other counsel not reasonably objected to by the Indemnifying Party) at its own expense separate from the counsel employed by the Indemnifying Party (it being understood that the Indemnifying Party shall be liable for and shall reimburse the Indemnified Party for all costs, fees and expenses (including the reasonable fees and expenses of counsel employed by the Indemnified Party) for any period during which the Indemnifying Party has not assumed the defense thereof (other than during any period in which the Indemnified Party shall have failed to give notice of the Third Party Claim as provided above)). If the Indemnifying Party chooses to defend or prosecute a Third Party Claim, all the Indemnified Parties shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the Indemnifying Party's request) the provision to the Indemnifying Party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis during normal business hours to provide additional information and explanation of any material provided hereunder. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnifying Party shall not, without the Indemnified Party's prior written consent, admit any Liability with respect to, or settle, compromise or discharge, such Third Party Claim on a basis that would result in (i) the imposition of a judgment that would restrict the future activity or conduct of the Indemnified Party or any subsidiary or affiliate thereof, or (ii) any monetary liability of the Indemnified Party that will not be paid or reimbursed by the Indemnifying Party.
(c) In the event any Indemnified Party should have a claim against any Indemnifying Party that does not involve a Third Party ClaimClaim being asserted against or sought to be collected from such Indemnified Party, if the Indemnified Party shall deliver notice of such claim promptly (but in no event more than 30 days) following discovery by the Indemnified Party of such claim to the Indemnifying Party. The failure by any Indemnified Party to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability that it may have to such Indemnified Party, except to the extent that the Indemnifying Party demonstrates that it has been actually prejudiced by such failure. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) 30 calendar days from following its receipt of the such notice from the Indemnified Party that the Indemnifying Party disputes its liability to the Indemnified Party, such claim, claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party and the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
(b) If an Indemnified Party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of pay the receipt amount of such notice, liability to the Indemnified Party shall give on demand or, in the Indemnifying Party 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 Third Party Claim; provided that the failure to provide claim (or such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent that the Indemnifying Party is materially prejudiced by such failureportion thereof) becomes finally determined. If the Indemnifying Party acknowledges in writing has timely disputed its obligation liability with respect to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claimclaim, then the Indemnifying Party shall be entitled to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnifying Party and the Indemnified Party shall cooperate with proceed in good faith to resolve the Indemnifying Party dispute prior to bringing any proceeding or action in court.
(d) Any claim for indemnification under this Agreement shall describe the claim in reasonable detail, include copies of any available material written evidence thereof and indicate the estimated amount of such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified Partyclaim.
Appears in 1 contract
Sources: Acquisition Agreement (Protection One Alarm Monitoring Inc)
Procedures Relating to Indemnification. (a) Any party seeking indemnification under Section 6.01 (an “Indemnified Party”) shall promptly give the Party from whom indemnification is being sought (an “Indemnifying Party”) notice In respect of any matter which such Indemnified Party has determined has given claim regarding indemnification for any Liability or would reasonably be expected to give rise to a right of indemnification Loss arising under this Agreement stating Agreement, the Person making such claim shall have the burden of proof that such Person is entitled to such indemnification.
(b) In order for an indemnified party to be entitled to any indemnification provided for under this Article 8 in respect of, arising out of or involving a claim or demand made by any Person, Governmental Authority or corporation against the indemnified party (a “Third-Party Claim”), such indemnified party shall notify the indemnifying party in writing, and in reasonable detail the factual basis of the claim to the extent known known, of the Third-Party Claim promptly after receipt by such indemnified party of notice of the Indemnified PartyThird-Party Claim; provided, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises; provided however, that the failure to provide give such notice notification shall not release affect the Indemnifying Party from any of its obligations under this Article VI indemnification provided hereunder except to the extent the Indemnifying Party is materially indemnifying party shall have been actually prejudiced by as a result of such failure. With respect The indemnified party shall deliver to any recovery or indemnification sought the indemnifying party, within ten (10) Business Days after the indemnified party’s receipt thereof, copies of all notices and documents (including court papers) received by the indemnified party relating to the Third-Party Claim.
(c) If a Third-Party Claim is made against an Indemnified Party from indemnified party, and the Indemnifying Party indemnifying party acknowledges in writing to the indemnified party that does not involve a Third the indemnifying party shall be obligated under the terms of its indemnity hereunder in connection with such Third-Party Claim, then the indemnifying party shall be entitled if it so elects, at its own cost, risk and expense, to assume the Indemnifying defense thereof with counsel selected by the indemnifying party and reasonably satisfactory to the indemnified party. The indemnifying party will have fifteen (15) calendar days from receipt of any such notice of a Third-Party Claim to give notice to assume the defense thereof. Should the indemnifying party so elect to assume the defense of a Third-Party Claim, the indemnifying party will not be liable to the indemnified party for legal expenses subsequently incurred by the indemnified party in connection with the defense thereof, unless the joint representation of the indemnifying party and the indemnified party by a single law firm with respect to such Third-Party Claim involves potential conflicts of interest or substantially different defenses for the indemnified party and the indemnifying party, or the Third-Party Claim seeks an injunction or other equitable relief against the indemnified party that would restrict or adversely affect the ongoing business or operations of such indemnified party or its Affiliates in a material manner if successful. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel, at its own expense (except to the extent provided in the immediately preceding sentence), separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. If the indemnifying party shall have assumed the defense of a Third-Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge, such Third-Party Claim without the indemnifying party’s prior written consent (which consent shall not be unreasonably withheld). Any compromise or settlement of a Third-Party Claim by the indemnifying party shall be made only with the written Consent of the indemnified party (in its sole discretion), if such compromise or settlement (i) would restrict or adversely affect the indemnified party or the conduct of any of its or its Affiliates’ businesses or operations in a material manner, (ii) would include an admission of wrongdoing or misconduct by the indemnified party, (iii) does not notify fully and irrevocably release the Indemnified indemnified party from all Liabilities and obligations with respect to such Third-Party within thirty Claim, (30iv) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
(b) If an Indemnified Party shall receive notice of involves any claim for which the indemnified party is not fully indemnified by the indemnifying party or demand asserted by (v) imposes any injunctive or other equitable relief against the indemnified party. If the indemnifying party fails to assume the defense of a third party Third-Party Claim within fifteen (each, a “Third Party Claim”15) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) calendar days of the after receipt of such notice, the Indemnified indemnified party against which such Third-Party shall give Claim has been asserted will (upon delivering notice to such effect to the Indemnifying Party notice indemnifying party) have the right to undertake, at the indemnifying party’s cost and expense, the defense, compromise or settlement of such Third claim on behalf of and for the account and risk of the indemnifying party. In the event the indemnified party assumes the defense of the Third-Party Claim, the indemnified party will keep the indemnifying party reasonably informed of the progress of any such defense, compromise or settlement; provided provided, however, that if the failure indemnifying party has agreed in writing that it is obligated under the terms of its indemnity hereunder in connection with such Third-Party Claim, then any compromise or settlement of a Third-Party Claim by the indemnified party shall require the prior written Consent of the indemnifying party (not to be unreasonably withheld). The indemnifying party shall be liable for the fees and expenses of one (1) outside counsel and reasonably necessary local counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof. If the indemnifying party chooses to defend any Third-Party Claim, all the parties hereto shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the indemnifying party’s request) the provision to the indemnifying party of records and information that are reasonably relevant to such Third-Party Claim, and making employees available on a mutually convenient basis to provide such notice additional information and explanation of any material provided hereunder.
(d) The indemnified party will notify the indemnifying party in writing as soon as practicable of its discovery of any matter or condition that does not involve a Third-Party Claim being asserted against or sought to be collected from the indemnified party, giving rise to the claim of indemnity pursuant hereto. The failure so to notify the indemnifying party shall not release relieve the Indemnifying Party indemnifying party from any liability on account of its obligations under this Article VI indemnification, except only if and to the extent that the Indemnifying Party is materially prejudiced indemnifying party demonstrates actual damage caused by such failure. If The indemnifying party will have fifteen (15) calendar days from receipt of any such notice to give notice of dispute of the Indemnifying Party acknowledges claim to the indemnified party. The indemnified party will reasonably cooperate and assist the indemnifying party in writing its obligation determining the validity of any claim for indemnity by the indemnified party and in otherwise resolving such matters. Such assistance and cooperation will include providing reasonable access to indemnify and copies of information, records and documents relating to such matters, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(e) For the Indemnified Party hereunder against any Losses that may result from such Third Party Claimavoidance of doubt, then and without limiting the Indemnifying Party parties’ rights and obligations under Sections 8.2(a), 8.3, 8.5(a), 8.5(b), 8.5(c) or 8.5(d) or the limitations on Seller’s indemnification obligations under Section 8.2(b), (c) or (d), Buyer shall be entitled to manage, control and/or perform any remedial or other responsive action or remedy or investigation (“Remedial Action”), in connection with any Liability under or relating to any Environmental Law that is or may reasonably become the subject of any claim for indemnification by the Buyer under this Agreement; provided that (i) the need for and the nature or scope of any such Remedial Action, and any workplan, proposed action or selection of consultant in connection therewith, shall be subject to Seller’s prior review; (ii) Buyer shall provide Seller with (A) copies of reports, studies, investigations, data, sampling results or, as reasonably requested by Seller, other correspondence, documentation or information relating to such Remedial Action; (B) a reasonable opportunity to comment in advance on drafts of reports, studies or investigations and on any material submissions or communications to any Governmental Authority in connection with such Remedial Action, which Buyer shall reasonably consider, and to attend (but not participate in) any meetings with any Government Authority regarding any such Remedial Action; (C) access any applicable Buyer real property or facility reasonably necessary for Seller to monitor or observe, or for Seller to collect (at Seller’s expense) split samples relating to, such Remedial Action; and (D) updates on the status of any such Remedial Action on a regular basis or as otherwise reasonably requested by Seller. Notwithstanding the foregoing, but without limiting the parties’ rights and obligations under Sections 8.2(a), 8.3, 8.5(a), 8.5(b), 8.5(c) or 8.5(d) or the limitations on Seller’s indemnification obligations under Section 8.2(b), (c) or (d), Buyer shall have the sole authority to make any and all decisions with respect to Remedial Actions. Any Remedial Action that is the subject of any claim for indemnification by the Buyer under this Agreement shall be performed in accordance with all applicable Environmental Laws and in a workmanlike manner. Buyer and Seller shall reasonably cooperate with one another in connection with any Remedial Action that is the subject of any claim for indemnification by the Buyer under this Agreement. In the event that Seller or Buyer may have a claim against any third party (including any landlord of any leased property), or any legal defense, with respect to any Liability under or relating to any Environmental Law that is or may reasonably become the subject of any claim for indemnification by the Buyer under this Agreement (regardless of whether any such Liability involves any Remedial Action), Buyer shall cooperate with Seller, at Sellers sole cost and expense (other than Buyer’s administrative and other internal costs), with respect to asserting and establishing such claim or defense.
(f) Each party shall act in a commercially reasonable manner with respect to any Remedial Action and any other matter that, in each case, is or may reasonably become the subject of any claim for indemnification for any Loss or Liability under or relating to any Environmental Law by such party under this Agreement, including reasonably promptly taking action in response to known non-compliance with Environmental Laws if taking action would be commercially reasonable and would avoid further exacerbation of Liabilities or Losses associated with such non-compliance. Buyer shall follow in all material respects the same internal standards regarding compliance with Environmental Laws with respect to the Transferred Facilities that it applies to its other comparable manufacturing facilities in the United States. Notwithstanding the foregoing, a party’s failure to take the actions to it described in the immediately preceding two sentences shall not affect the other party’s indemnification obligations hereunder, except to the extent such failure has resulted in Losses or Liabilities in excess of those for which the other party would have been responsible absent such failure.
(g) Notwithstanding the provisions of Sections 8.5(b), (c) and (d), if a Third-Party Claim relating to Taxes (“Tax Claim”) shall be made by any Governmental Authority which, if successful, might result in an indemnity payment to Buyer, on the one hand, or Seller, on the other hand, pursuant to this Article 8, the indemnified party shall notify the indemnifying party in writing of such Tax Claim within 15 days of receipt of any written notice from the taxing authority, and shall give the indemnifying party such other information with respect thereto as the indemnifying party may reasonably request. With respect to any Tax Claim, the indemnifying party may, at its own expense, participate in and assume the defense of any such claim, suit, action, litigation or Proceeding (including any Tax audit); provided, however, that if the indemnifying party assumes such defense, the indemnified party may participate in such defense. In no case shall a party settle or otherwise compromise any Tax Claim without the prior written Consent of the other party (which Consent shall not be unreasonably withheld or delayed.) Anything to the contrary in this Section 8.5 notwithstanding, if a Tax Claim includes or could reasonably be expected to include both a claim for Taxes that are Excluded Taxes and a claim for Taxes that are not Excluded Taxes, and such claim for Taxes that are Excluded Taxes is not separable from such a claim for Taxes that are not Excluded Taxes, Seller (if the claim for Taxes that are Excluded Taxes exceeds or reasonably could be expected to exceed in amount the claim for Taxes that are not Excluded Taxes) or otherwise the Buyer (Seller or Buyer, as the case may be, the “Controlling Party”), shall be entitled to control the defense of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to Tax Claim. In such case, the Indemnified Party within fifteen other party (15Seller or Buyer, as the case may be, the “Non-Controlling Party”) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, participate fully (at the Indemnifying Non-Controlling Party’s sole expense. In ) in the event that conduct of such Tax Claim and the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Controlling Party shall cooperate with not settle such Tax Claim without the Indemnifying consent of such Non-Controlling Party in such defense (which consent shall not be unreasonably withheld). The costs and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, expenses of conducting the defense against of such Tax Claim shall be reasonably apportioned based on the relative amounts of the Tax Claim that are Excluded Taxes and the Tax Claim that are not Excluded Taxes. It is provided, however, that neither party shall be required to provide the other party with copies of, or access to, its consolidated income tax returns or audits of any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available consolidated income tax returns (except to the Indemnified Party, at extent they relate solely to the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified Partyrelevant Tax Claims).
Appears in 1 contract
Procedures Relating to Indemnification. In order for a party (athe "indemnified party") Any party seeking to be entitled to any indemnification provided for under Section 6.01 (an “Indemnified Party”) shall promptly give the Party from whom indemnification is being sought (an “Indemnifying Party”) notice of any matter which such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement in respect of, arising out of which or involving a claim or demand made by any person against the indemnified party (a "Third Party Claim"), such right indemnified party must notify the indemnifying party in writing, and in reasonable detail, of indemnification is claimed or arisesthe Third Party Claim within 10 business days after receipt by such indemnified party of written notice of the Third Party Claim; provided provided, however, that the failure to provide give such notice notification shall not release affect the Indemnifying Party from any of its obligations under this Article VI indemnification provided hereunder except to the extent the Indemnifying indemnifying party shall have been actually prejudiced as a result of such failure (except that the indemnifying party shall not be liable for any expenses incurred during the period in which the indemnified party failed to give such notice). The indemnifying party shall be entitled to participate in the defense of any Third Party is materially prejudiced Claim and, if it so chooses and acknowledges its obligation to indemnify the indemnified party therefor, to assume the defense thereof with counsel selected by such failurethe indemnifying party and reasonably acceptable to the indemnified party. With respect Should the indemnifying party so elect to any recovery or indemnification sought by an Indemnified Party from assume the Indemnifying Party that does not involve defense of a Third Party Claim, if the Indemnifying Party does not notify the Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
(b) If an Indemnified Party shall receive notice of any claim or demand asserted by a third indemnifying party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such notice, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except be liable to the extent that indemnified party for legal expenses subsequently incurred by the Indemnifying Party is materially prejudiced by such failureindemnified party in connection with the defense thereof. If the Indemnifying Party acknowledges indemnifying party assumes such defense, the indemnified party shall have the right to participate in writing the defense thereof and to employ counsel (not reasonably objected to by the indemnifying party), at its obligation to indemnify own expense, separate from the Indemnified Party hereunder against counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. Notwithstanding the foregoing, in the event that the indemnified party reasonably determines, based on the advice of outside counsel, that there is a conflict of interest between the indemnified party and the indemnifying party in the defense of any Losses that may result from such Third Party Claim, then (i) the Indemnifying Party indemnifying party shall be entitled not have the right to assume and control direct the defense of such Third Party Claim at its expense on the indemnified party's behalf and through counsel (ii) the indemnifying party shall indemnify the indemnified party for all reasonable 42 37 legal fees and expenses reasonably incurred by the indemnified party in the defense thereof. If the indemnifying party so elects to assume the defense of its choice if it gives notice of its intention to do so to the Indemnified any Third Party within fifteen (15) days Claim, all of the receipt of such notice from indemnified parties shall cooperate with the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate indemnifying party in the judgment defense or prosecution thereof. Whether or not the indemnifying party shall have assumed the defense of a Third Party Claim, the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Partyindemnified party shall not admit any liability with respect to, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is requiredor settle, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any compromise or discharge, such Third Party Claim as provided abovewithout the indemnifying party's prior written consent (which consent shall not be unreasonably withheld). If the indemnifying party shall have assumed the defense of a Third Party Claim, the Indemnified indemnified party shall agree to any settlement, compromise or discharge of a Third Party shall cooperate Claim which the indemnifying party may recommend and which by its terms obligates the indemnifying party to pay the full amount of the liability in connection with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, which releases the Indemnifying Party shall cooperate indemnified party completely in connection with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by and imposes no nonmonetary obligation on the Indemnifying Party without the prior written consent of the Indemnified Partyindemnified party.
Appears in 1 contract
Sources: Asset Purchase Agreement (Paxson Communications Corp)
Procedures Relating to Indemnification. (a) Any party seeking indemnification under Section 6.01 Subject to the limitations set forth elsewhere in this Article 4, in order for any Person (an such Person the “Indemnified Claiming Party”) shall promptly give the Party from whom to be entitled to indemnification is being sought (an “Indemnifying Party”) notice of any matter which such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification recovery under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement in respect of which a claim or demand made by any Person against the Claiming Party (a “Third Party Claim”), such right Claiming Party will notify Buyer (in cases of claims for indemnification is claimed under Section 4.02) or arisesSellers’ Representative (in cases of claims for indemnification under Section 4.03) (in either case, the “Defending Party”) in writing, and in reasonable detail, of the Third Party Claim as promptly as reasonably possible after receipt by such Claiming Party of notice of the Third Party Claim; provided provided, however, that the failure to provide give such notice shall notification on a timely basis will not release affect the Indemnifying Party from any of its obligations under this Article VI indemnification or escrow recovery, as applicable, provided hereunder except to the extent the Indemnifying Defending Party is will have been actually and materially prejudiced by as a result of such failure. With respect Thereafter, the Claiming Party will deliver to any recovery or indemnification sought the Defending Party, reasonably promptly after the Claiming Party’s receipt thereof, copies of all notices and documents (including court papers) received by an Indemnified the Claiming Party from relating to the Indemnifying Third Party that does not involve Claim.
(b) If a Third Party ClaimClaim is made against a Claiming Party, the Defending Party will be entitled to participate in the defense thereof and, if it so chooses, to assume the Indemnifying defense thereof with reputable counsel selected by the Defending Party, so long as the requirements of this Section 4.05(b) remain true: (i) the Defending Party does not notify notifies the Indemnified Claiming Party within thirty (30) days from its receipt after the Claiming Party has given written notice of a Third Party Claim to the Defending Party (unless in such notice from the Indemnified Claiming Party certifies, in good faith, that the Indemnifying failure to assume such defense within fifteen (15) days would materially prejudice the Claiming Party disputes such claimby a delay in assuming the defense beyond fifteen (15) days, in which case, the Indemnifying Claiming Party shall be deemed will have the right to have accepted and agreed with such claim.
(b) If an Indemnified Party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise assume the defense subsequent to a claim for Loss under this Article VI, within thirty (30) days of the receipt expiration of such noticefifteen (15) day period if the Defending Party fails to so assume the defense thereof), that the Indemnified Defending Party shall give is assuming the Indemnifying Party notice defense of such Third Party Claim; provided and (ii) the Defending Party conducts the defense of the Third Party Claim in an active and diligent manner; provided, however, that the failure Defending Party will not be entitled to provide such notice shall assume the defense (unless otherwise agreed to in writing by the Claiming Party) if (x) the Third Party Claim relates to any criminal proceeding, action, indictment, allegation or investigation or (y) the Third Party Claim primarily seeks an injunction or equitable relief against the Claiming Party. Notwithstanding the foregoing, a Defending Party will not release be entitled to assume the Indemnifying defense of a Third Party from any of its obligations under this Article VI except Claim unless it has acknowledged in writing to the extent Claiming Party that indemnification or recovery from the Escrow Account (to the extent, if any, that the Indemnifying claimant with respect such Third Party is materially prejudiced by such failure. If Claim ultimately recovers from the Indemnifying Party acknowledges in writing its obligation Claiming Party) applies to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then the Indemnifying . Should a Defending Party shall be entitled so elect to assume and control the defense of a Third Party Claim, the Defending Party will not be liable to the Claiming Party for legal expenses subsequently incurred by the Claiming Party in connection with the defense thereof unless (I) the employment of separate counsel will have been authorized in writing by the Defending Party in connection with the defense of such Third Party Claim at its expense and through or (II) the Claiming Party’s counsel of its choice if it gives notice of its intention to do so will have advised the Claiming Party in writing, with a copy delivered to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Defending Party; provided , that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in under applicable standards of professional conduct to have common counsel. If the judgment of Defending Party assumes such defense, the Indemnified Claiming Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises will have the right to undertake any participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Defending Party, it being understood, however, that the Defending Party will control such defense against (including any such settlement with respect thereto); provided, however, that the Defending Party will obtain the prior written consent of the Claiming Party (which will not be unreasonably withheld, conditioned or delayed) before entering into any settlement, compromise, admission or acknowledgement of the validity of the Third Party Claim as provided above, if such resolution would involve anything other than the Indemnified Party shall cooperate with payment of monetary damages in an amount less than the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information amount remaining in the Indemnified Party’s possession Escrow Account and does not include an unconditional provision whereby the plaintiff or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, claimant in the event matter releases the Indemnified Claiming Party isand all of its Affiliates and representatives from all liability with respect thereto. If the Defending Party chooses to defend any Third Party Claim, directly or indirectly, conducting then all the parties hereto will cooperate in the defense against any or prosecution of such Third Party Claim, including by retaining and (upon the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available Defending Party’s request) providing to the Indemnified Party, at the Indemnifying Party’s expense, Defending Party all such witnesses, records, materials records and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is which are reasonably required by the Indemnified Party. No relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Sellers’ Representative will act on behalf of all Defending Parties in the case of all Third Party Claims with respect to which Buyer is seeking indemnification pursuant to Section 4.03(a), funds from the Escrow Account under Section 4.04. Whether or not Sellers’ Representative will have assumed the defense of a Third Party Claim, neither Buyer nor any of its Affiliates will admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim may be settled by for which any sums are recoverable from the Indemnifying Party Escrow Account without the prior written consent of Sellers’ Representative (which will not be unreasonably withheld, conditioned or delayed); provided, that truthful answers as part of any legal process will not be a violation of this sentence.
(c) In any case in which a Claiming Party seeks indemnification or recovery from the Indemnified PartyEscrow Account under this Agreement not arising out of a Third Party Claim, the Claiming Party will notify the Defending Party in writing of any Losses that such Claiming Party claims are subject to indemnification or recovery from the Escrow Account under the terms of this Agreement. The notice will describe the indemnification sought in reasonable detail to the extent known, and will indicate the amount (estimated, if necessary, and if then estimable) of the Loss that has been or may be suffered. Subject to the limitations set forth in Section 4.04(b) and this Section 4.05, the failure of the Claiming Party to exercise promptness in such notification will not amount to a waiver of such claim unless and only to the extent that the resulting delay actually materially and adversely prejudices the position of the Defending Party with respect to such claim.
Appears in 1 contract
Procedures Relating to Indemnification. (a) Any party seeking indemnification under Section 6.01 Each Person to be indemnified pursuant to Sections 9.1 or ------------ 9.2 hereof (an “the "Indemnified Party”") shall promptly agrees to give prompt notice to the Party from whom indemnification is being sought --- ----------------- indemnifying party (an “the "Indemnifying Party”") notice of the assertion of any matter which such claim, or ------------------ the commencement of any Action, brought against or sought to be collected by a third party from the Indemnified Party has determined has given (each a "Third Party Claim"), in respect ----------------- of which indemnity may be sought by an Indemnified Party under Sections 9.1 or would reasonably be expected ------------ 9.2 hereof; provided, that the omission so to give rise promptly notify the Indemnifying --- -------- Party with respect to a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises; provided that the failure to provide such notice shall Third Party Claim will not release relieve the Indemnifying Party from any of its obligations liability that it may have to such Indemnified Party under this Article VI Sections 9.1 or 9.2 hereof, except to the extent that such failure has ------------ --- materially prejudiced such Indemnifying Party with respect to the defense of such Third Party Claim. Upon receiving such notice, the Indemnifying Party is materially prejudiced by such failure. With respect shall be entitled to any recovery or indemnification sought by an assume, at its sole expense, the defense thereof, with counsel reasonably satisfactory to the Indemnified Party and, after written notice from the Indemnifying Party that does not involve a to such Indemnified Party of its election so to assume the defense of such Third Party Claim, if the Indemnifying Party does not notify the Indemnified Party Claim within thirty (30) ten business days from its after receipt of the notice from the Indemnified Party that the Indemnifying of such Third Party disputes such claimClaim, the Indemnifying Party shall not be deemed liable to such Indemnified Party hereunder for legal expenses of other counsel subsequently incurred by such Indemnified Party in connection with the defense thereof, unless (i) the Indemnifying Party agrees to pay such fees and expenses, or (ii) the Indemnifying Party fails promptly to assume such defense or fails to employ counsel reasonably satisfactory to such Indemnified Party, or (iii) the named parties to any such Third Party Claim (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party or an Affiliate of the Indemnifying Party, and a material conflict may exist between such 49 Indemnified Party and the Indemnifying Party or such Affiliate. In the event of any clause (i), (ii) and (iii) of the immediately preceding sentence, if such Indemnified Party notifies the Indemnifying Party in writing, the Indemnifying Party shall not have accepted the right to control the defense thereof and agreed such Indemnified Party shall have the right to employ its own counsel in connection with such Third Party Claim and the reasonable fees and expenses of such counsel shall be paid, as incurred, by the Indemnifying Party, it being understood, however, that the Indemnifying Party shall not, in connection with any one such Third Party Claim or separate but substantially similar or related Third Party Claims in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all such Indemnified Parties. The Indemnifying Party shall be liable for Damages arising out of any settlement of any Third Party Claim. Neither party, considering the Indemnifying Party as one party and the Indemnified Party as the other party, shall (i) settle or compromise or consent to the entry of any judgment in or otherwise seek to terminate any pending or threatened Third Party Claim without the consent of the other party, which consent shall not be unreasonably withheld, or (ii) without the prior written consent of the other party effect any settlement or compromise or consent to the entry of any judgment in or otherwise seek to terminate any pending or threatened proceeding in respect of which such other party is, or with reasonable foreseeability could have been, a party and indemnity could have been sought hereunder by such other party for a Third Party Claim brought against or sought to be collected from such other party, unless in the case of either (i) or (ii) immediately above such settlement, compromise, consent to judgment or termination includes an unconditional release of such other party from all liability arising out of such proceeding (provided, that, whether or not such a release is required to be -------- obtained, the Indemnifying Party shall remain liable to such Indemnified Party in accordance with Sections 9.1 or 9.2 hereof in the event that a Third Party ------------ --- Claim is subsequently brought against or sought to be collected from such Indemnified Party). The indemnification required by Sections 9.1 or 9.2 hereof, ------------ --- as the case may be, shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or loss, liability, claim, damage or expense is incurred.
(b) If an In the event any Indemnified Party shall receive notice of should have a claim against any claim Indemnifying Party under Sections 9.1 or demand asserted by 9.2 hereof that does not ------------ --- involve a third party (each, a “Third Party Claim”) Claim being asserted against it or which may give rise sought to a claim for Loss under this Article VI, within thirty (30) days of the receipt of be collected from such noticeIndemnified Party, the Indemnified Party shall give deliver notice of such claim with reasonable promptness to the Indemnifying Party. The failure by any Indemnified Party so to notify the Indemnifying Party notice of such Third Party Claim; provided that the failure to provide such notice shall not release relieve the Indemnifying Party from any of its obligations liability that it may have to such Indemnified Party under this Article VI Sections 9.1 or 9.2 hereof except to the extent that the Indemnifying ------------ --- Party is demonstrates that it has been materially prejudiced by such failure. If the Indemnifying Party acknowledges in writing disputes its obligation liability with respect to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then the Indemnifying Party shall be entitled to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claimclaim, the Indemnifying Party shall cooperate with and the Indemnified Party agree to proceed in good faith to negotiate a resolution of such defense and make available to the Indemnified Partydispute and, at the Indemnifying Party’s expenseif not resolved through negotiations, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may dispute shall be settled by the Indemnifying Party without the prior written consent litigation in a court of the Indemnified Partycompetent jurisdiction.
Appears in 1 contract
Procedures Relating to Indemnification. (a) Any party seeking indemnification under Section 6.01 (an “Indemnified Party”) shall promptly give the Party from whom indemnification is being sought (an “Indemnifying Party”) notice of any matter which such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim Subject to the extent known by limitations set forth elsewhere in this Article 5, in order for any Person (such Person the Indemnified "Claiming Party, and containing a reference ") to the provisions of be entitled to indemnification or recovery under this Agreement in respect of which a claim or demand made by any Person against the Claiming Party (a "Third Party Claim"), such right Claiming Party will notify the Buyer (in cases of claims for indemnification is claimed under Section 5.02) or arisesthe Sellers' Representative (in cases of claims for indemnification under Section 5.03) (in either case, the "Defending Party") in writing, and in reasonable detail, of the Third Party Claim as promptly as reasonably possible after receipt by such Claiming Party of notice of the Third Party Claim; provided provided, however, that the failure to provide give such notice shall notification on a timely basis will not release affect the Indemnifying Party from any of its obligations under this Article VI indemnification or escrow recovery, as applicable, provided hereunder except to the extent the Indemnifying Defending Party is will have been actually and materially prejudiced by as a result of such failure. With respect Thereafter, the Claiming Party will deliver to any recovery or indemnification sought the Defending Party, reasonably promptly after the Claiming Party's receipt thereof, copies of all notices and documents (including court papers) received by an Indemnified the Claiming Party from relating to the Indemnifying Third Party Claim. The Parties acknowledge that does not involve (i) the matters set forth in (x) Item 3 of Schedule 5.03(b)(vi), (y) the workers compensation, employment practices and property damage claims included in the Pre-Closing Claims, and (z) all other Pre-Closing Claims for which a specific reserve exists as of the Closing Date (collectively, the "Noticed Claims") constitute Third-Party Claims for which no additional notice is required by this Section 5.05(a) and (ii) the Sellers’ Representative waives its right arising under the first sentence of Section 5.05(b) to control the defense of the Noticed Claims described in immediately preceding clauses (x) and (y).
(b) If a Third Party ClaimClaim is made against a Claiming Party, the Defending Party will be entitled to participate in the defense thereof and, if it so chooses, to assume the Indemnifying defense thereof with reputable counsel selected by the Defending Party, so long as the requirements of this Section 5.05(b) remain true: (i) the Defending Party does not notify notifies the Indemnified Claiming Party within thirty (30) days from its receipt after the Claiming Party has given written notice of a Third Party Claim to the Defending Party (unless in such notice from the Indemnified Claiming Party certifies, in good faith, that the Indemnifying failure to assume such defense within fifteen (15) days would materially prejudice the Claiming Party disputes such claimby a delay in assuming the defense beyond fifteen (15) days, in which case, the Indemnifying Claiming Party shall be deemed will have the right to have accepted and agreed with such claim.
(b) If an Indemnified Party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise assume the defense subsequent to a claim for Loss under this Article VI, within thirty (30) days of the receipt expiration of such noticefifteen (15) day period if the Defending Party fails to so assume the defense thereof), that the Indemnified Defending Party shall give is assuming the Indemnifying Party notice defense of such Third Party Claim; provided and (ii) the Defending Party conducts the defense of the Third Party Claim in an active and diligent manner; provided, however, that the failure Defending Party will not be entitled to provide such notice shall assume the defense (unless otherwise agreed to in writing by the Claiming Party) if (x) the Third Party Claim relates to any criminal proceeding, action, indictment, allegation or investigation or (y) the Third Party Claim primarily seeks an injunction or equitable relief against the Claiming Party. Notwithstanding the foregoing, a Defending Party will not release be entitled to assume the Indemnifying defense of a Third Party from any of its obligations under this Article VI except Claim unless it has acknowledged in writing to the extent Claiming Party that indemnification or recovery from the Indemnifying Party is materially prejudiced by such failure. If Escrow Account or the Indemnifying Party acknowledges in writing its obligation Pre-Closing Reserves applies to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then the Indemnifying . Should a Defending Party shall be entitled so elect to assume and control the defense of a Third Party Claim, the Defending Party will not be liable to the Claiming Party for legal expenses subsequently incurred by the Claiming Party in connection with the defense thereof unless (I) the employment of separate counsel will have been authorized in writing by the Defending Party in connection with the defense of such Third Party Claim at its expense and through or (II) the Claiming Party's counsel of its choice if it gives notice of its intention to do so will have advised the Claiming Party in writing, with a copy delivered to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Defending Party; provided , that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in under applicable standards of professional conduct to have common counsel. If the judgment of Defending Party assumes such defense, the Indemnified Claiming Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises will have the right to undertake any participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Defending Party, it being understood, however, that the Defending Party will control such defense against (including any such settlement with respect thereto); provided, however, that the Defending Party will obtain the prior written consent of the Claiming Party (which will not be unreasonably withheld, conditioned or delayed) before entering into any settlement, compromise, admission or acknowledgement of the validity of the Third Party Claim as provided above, if such resolution would involve anything other than the Indemnified Party shall cooperate with payment of monetary damages in an amount less than the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information amount remaining in the Indemnified Party’s possession Indemnity Escrow Account and the remaining Pre-Closing Reserves and does not include an unconditional provision whereby the plaintiff or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, claimant in the event matter releases the Indemnified Claiming Party isand all of its Affiliates and representatives from all liability with respect thereto. If the Defending Party chooses to defend any Third Party Claim, directly or indirectly, conducting then all the parties hereto will cooperate in the defense against any or prosecution of such Third Party Claim, including by retaining and (upon the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available Defending Party's request) providing to the Indemnified Party, at the Indemnifying Party’s expense, Defending Party all such witnesses, records, materials records and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is which are reasonably required by the Indemnified Party. No relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Sellers' Representative will act on behalf of all Defending Parties in the case of all Third Party Claims with respect to which Buyer is seeking indemnification pursuant to Section 5.03(b), funds from the Escrow Account under Section 5.04 or funds from the Pre-Closing Reserves under Section 5.08. Whether or not Sellers' Representative will have assumed the defense of a Third Party Claim, neither Buyer nor any of its Affiliates will admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim may be settled by for which any sums are recoverable from the Indemnifying Party Escrow Account or the Pre-Closing Reserves without the prior written consent of Sellers' Representative (which will not be unreasonably withheld, conditioned or delayed); provided, however, that the Indemnified Partyconsent of the Sellers' Representative will not be required to settle, compromise, or discharge any Noticed Claims described in clauses (x) or (y) of such definition (as to which the Sellers’ Representative has waived its right to control the defense of such claims under the last sentence of Section 5.05(a)) to the extent the amount of such settlement, compromise, or discharge is $50,000 or less.
(c) In any case in which a Claiming Party seeks indemnification or recovery from the Escrow Account or the Pre-Closing Reserves under this Agreement not arising out of a Third Party Claim, the Claiming Party will notify the Defending Party in writing of any Losses that such Claiming Party claims are subject to indemnification or recovery from the Escrow Account or the Pre-Closing Reserves under the terms of this Agreement. The notice will describe the indemnification sought in reasonable detail to the extent known, and will indicate the amount (estimated, if necessary, and if then estimable) of the Loss that has been or may be suffered. Subject to the limitations set forth in Section 5.04(b) and this Section 5.05, the failure of the Claiming Party to exercise promptness in such notification will not amount to a waiver of such claim unless and only to the extent that the resulting delay actually materially and adversely prejudices the position of the Defending Party with respect to such claim.
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Procedures Relating to Indemnification. (a) Any party seeking indemnification under Section 6.01 (an “Indemnified Party”) shall promptly give In order for the Party from whom indemnification is being sought (an “Indemnifying Party”) notice of any matter which such Indemnified Party has determined has given or would reasonably to be expected entitled to give rise to a right of any indemnification provided for under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement in respect of, arising out of which or involving a claim or demand made by any person against the Indemnified Party (a "Third Party Claim"), such right Indemnified Party must notify the party against whom indemnity is sought (the "Indemnifying Party") in writing, and in reasonable detail, of indemnification is claimed or arisesthe Third Party Claim within five (5) Business Days after receipt by such Indemnified Party of written notice of the Third Party Claim; provided provided, however, that the failure to provide give such notice notification shall not release affect the Indemnifying Party from any of its obligations under this Article VI indemnification provided hereunder except to the extent the Indemnifying Party is materially shall have been actually prejudiced by as a result of such failure. With respect to any recovery or indemnification sought by an Indemnified Party from the Indemnifying Party that does not involve a Third Party Claim, if the Indemnifying Party does not notify the Indemnified Party within thirty failure (30) days from its receipt of the notice from the Indemnified Party except that the Indemnifying Party disputes shall not be liable for any expenses incurred during the period in which the Indemnified Party failed to give such claimnotice). Thereafter, the Indemnified Party shall deliver to the Indemnifying Party, within five (5) Business Days after the Indemnified Party's receipt thereof, copies of all notices and documents (including court papers) received by the indemnified parties relating to the Third Party Claim. If a Third Party Claim is made against an Indemnified Party, the Indemnifying Party shall be deemed entitled to have accepted participate in the defense thereof and, if it so chooses and agreed with such claim.
(b) If an Indemnified Party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such notice, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claimtherefor, then the Indemnifying Party shall be entitled to assume and control the defense of such Third Party Claim at its expense and through thereof with counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required selected by the Indemnifying Party. Similarly, in Should the event the Indemnified Indemnifying Party is, directly or indirectly, conducting so elect to assume the defense against any such of a Third Party Claim, the Indemnifying Party shall cooperate with not be liable to the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof. If the Indemnifying Party assumes such defense and make available to defense, the Indemnified PartyParty shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party’s expense, 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 Indemnified Party for any period during which the Indemnifying Party has failed to assume the defense thereof (other than during the period prior to the time the Indemnified Party shall have given notice of the Third Party Claim as provided above). If the Indemnifying Party so elects to assume the defense of any Third Party Claim, all such witnesses, records, materials of the Indemnified Parties shall cooperate with the Indemnifying Party in the defense or prosecution thereof. Such cooperation shall include the retention and information in (upon the Indemnifying Party’s possession or under 's request) the provision to the Indemnifying Party’s control relating thereto as is Party of records and information that are reasonably required by relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the Indemnifying Party shall have assumed the defense of a Third Party Claim, the Indemnified Party. No Party shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim may without the Indemnified Party's prior written consent (which consent shall not be settled by unreasonably withheld). If the Indemnifying Party without shall have assumed the prior written consent defense of a Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of a Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of the Indemnified Partyliability in connection with such Third Party Claim, and which releases the Indemnifying Party completely in connection with such Third Party Claim.
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Procedures Relating to Indemnification. (a) Any party seeking In order for an Indemnitee to be entitled to any indemnification under Section 6.01 (an “Indemnified Party”) shall promptly give the Party from whom indemnification is being sought (an “Indemnifying Party”) notice of any matter which such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification provided for under this Agreement stating in respect of, arising out of or involving a claim made by any Person who is not an Indemnitee against the Indemnitee (a "Third Party Claim"), such Indemnitee must notify the party who may become obligated to provide indemnification hereunder (the "indemnifying party") in writing, and in reasonable detail the factual basis detail, of the claim Third Party Claim reasonably promptly, and in any event within 20 business days after receipt by such Indemnitee of written notice of the Third Party Claim; provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent known the indemnifying party shall have been actually prejudiced as a result of such failure; provided further, however, that with respect to any matter for which any New Gayl▇▇▇ ▇▇▇emnitor is the indemnifying party, such New Gayl▇▇▇ ▇▇▇emnitor shall be deemed to have received notice with respect to all matters by or against any Retained Company that arose prior to, or were otherwise pending at, the Effective Time. After any required notification (if applicable), 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 Indemnified PartyIndemnitee relating to the Third Party Claim.
(b) If a Third Party Claim is made against an Indemnitee, the indemnifying party will be entitled to participate in the defense thereof and, if it so chooses, to assume the defense thereof (at the expense of the indemnifying party) with counsel selected by the indemnifiying 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 expenses subsequently incurred by the Indemnitee in connection with the defense thereof. If the indemnifying party assumes such defense, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the Indemnitee shall have failed to give notice of the Third Party Claim as provided above). Notwithstanding the foregoing, the indemnifying party 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 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 outside counsel, cannot be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damages. The indemnification required by Section 2.01 or 2.02, as the case may be, shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or the indemnifiable Loss is incurred. If the indemnifying party chooses to defend or prosecute a Third Party Claim, all the parties hereto shall cooperate in the defense or prosecution thereof, which cooperation shall include the retention in accordance with the Distribution Agreement and (upon the indemnifying party's request) the provision to the indemnifying party of records and information which are reasonably relevant to such Third Party Claim, and containing making employees available on a reference mutually convenient basis to provide additional information and explanation of any material provided hereunder. It the provisions indemnifying party chooses to defend or prosecute any Third Party 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 liability in connection with such Third Party Claim; provided, however, that, without the Indemnitee's consent, the indemnifying party shall not consent to entry of any judgment or enter into any settlement (x) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or (y) that does not include as an unconditional term thereof the giving by each claimant or plaintiff to such Indemnitee of a release from all liability with respect to such claim. If the indemnifying party shall have assumed the defense of a Third Party Claim, the Indemnitee shall not admit any 10 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).
(c) In order for an Indemnitee to be entitled to any indemnification provided for under this Agreement in respect of which such right of indemnification is claimed or arises; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent the Indemnifying Party is materially prejudiced by such failure. With respect to any recovery or indemnification sought by an Indemnified Party from the Indemnifying Party a claim that does not involve a Third Party Claim, if the Indemnifying Party does not notify the Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party Indemnitee shall be deemed to have accepted and agreed with such claim.
(b) If an Indemnified Party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such notice, the Indemnified Party shall give the Indemnifying Party deliver notice of such Third Party Claim; provided that claim (in reasonably sufficient detail to enable the indemnifying party to evaluate such claim) with reasonable promptness to the indemnifying party. The failure by any Indemnitee so to provide such notice notify the indemnifying party shall not release relieve the Indemnifying Party indemnifying party from any of its obligations liability which it may have to such Indemnitee under this Article VI Agreement, except to the extent that the Indemnifying Party is materially indemnifying party shall have been actually prejudiced by such failure. If the Indemnifying Party acknowledges in writing indemnifying party does not notify the Indemnitee within 20 calendar days following its obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then the Indemnifying Party shall be entitled to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from that the Indemnified Party; provided that that if there exists indemnifying party disputes its liability with respect to such claim under Section 2.01 or is reasonably likely 2.02, as the case may be, the claim shall be conclusively deemed a liability of the indemnifying party under Section 2.01 or 2.02, as the case may be, and the indemnifying party shall pay the amount of such liability to exist a conflict of interest that would make it inappropriate the Indemnitee on demand or, in the judgment case of any notice in which the amount of the Indemnified Party in 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 sole and absolute discretion for the same counsel liability with respect to represent both the Indemnified Party and the Indemnifying Partysuch claim, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party indemnifying party and the Indemnitee shall cooperate with proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations, such dispute shall be resolved by litigation in an appropriate court of competent jurisdiction.
(d) The parties hereto agree that New Gayl▇▇▇ ▇▇▇ll be the Indemnifying Party in representative of the other New Gayl▇▇▇ ▇▇▇emnitors for all purposes of this Section 2.03, and as such defense all deliveries, notices and make available other communications made or delivered to New Gayl▇▇▇ ▇▇▇ll also be deemed to have been made or delivered to the Indemnifying Partyother New Gayl▇▇▇ ▇▇▇emnitors, at the Indemnifying Party’s expenseand all elections, all witnessesselections of counsel, pertinent recordschoices, materials agreements and information in the Indemnified Party’s possession consents made or under the Indemnified Party’s control relating thereto as is reasonably required delivered by New Gayl▇▇▇ ▇▇▇ll be deemed to have also been made or delivered by the Indemnifying Partyother applicable New Gayl▇▇▇ ▇▇▇emnitors, and shall be binding thereon. Similarly, in Notwithstanding the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claimforegoing, the Indemnifying Party parties hereto agree that nothing contained in this Section 2.03(d) shall cooperate with in any manner affect, limit or impair the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified Party.rights of
Appears in 1 contract
Sources: Post Closing Covenants Agreement (Gaylord Entertainment Co /De)
Procedures Relating to Indemnification. (a) Any party seeking indemnification under Section 6.01 In order for a Buyer Indemnitee or Seller Indemnitee (an such Buyer Indemnitee or the Sellers’ Representative, on behalf of any Seller Indemnitee, as applicable, the “Indemnified Claiming Party”) shall promptly give the Party from whom indemnification is being sought (an “Indemnifying Party”) notice of any matter which such Indemnified Party has determined has given or would reasonably to be expected entitled to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement in respect of which a claim or demand made by any Person against the Claiming Party (a “Third Party Claim”), such right Claiming Party shall promptly notify the Sellers’ Representative (in the case of indemnification is claimed a Buyer Indemnitee) or arisesthe Buyer (in the case of a Seller Indemnitee) (as applicable, the “Defending Party”) in writing of the Third Party Claim after receipt by such Claiming Party of notice of the Third Party Claim; provided that the failure to provide give such notice notification on a timely basis shall not release affect the Indemnifying Party from any indemnification obligations of its obligations under this Article VI the Sellers or the Buyer (as applicable) provided hereunder except to the extent the Indemnifying Defending Party is shall have been actually and materially prejudiced by as a result of such failure. With respect Thereafter, the Claiming Party shall promptly deliver to any recovery or indemnification sought the Defending Party after the Claiming Party’s receipt thereof, copies of all material notices and documents (including court papers) received by an Indemnified the Claiming Party from the Indemnifying Party that does not involve a Person making the Third Party Claim. For the avoidance of doubt, if no claim or demand for indemnification may be made by or on behalf of a Seller Indemnitee except by the Indemnifying Party does not notify the Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claimSellers’ Representative.
(b) If an Indemnified a Third Party Claim is made against a Claiming Party, the Defending Party shall receive be entitled to participate in the defense thereof and, if it so chooses, to assume the defense thereof with recognized counsel selected by the Defending Party and approved by the Claiming Party (such approval not to be unreasonably withheld), so long as the requirements of this Section 9.05(b) remain true: (i) the Defending Party notifies the Claiming Party within 15 days after the Claiming Party has given written notice of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise Claim to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such notice, Defending Party that the Indemnified Defending Party shall give is assuming the Indemnifying Party notice defense of such Third Party Claim; and (ii) the Defending Party conducts the defense of the Third Party Claim in an active and reasonably diligent manner; provided that the failure to provide such notice Defending Party shall not release be entitled to assume the Indemnifying Party from any of its obligations under this Article VI except defense (unless otherwise agreed to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party acknowledges in writing its obligation by the Claiming Party) if (x) the Third Party Claim relates to indemnify any criminal proceeding, action, indictment, allegation or investigation or (y) the Indemnified Third Party Claim seeks any relief other than monetary damages in an amount not in excess of the amount then remaining in the Indemnity Escrow Account and the Special Escrow Account as to which no Outstanding Escrow Claims are pending. Notwithstanding the foregoing, a Defending Party shall not be entitled to assume the defense of a Third Party Claim unless it has acknowledged in writing the Claiming Party’s right to reimbursement and indemnification hereunder against any for Losses that may result from with respect to such Third Party Claim. Should a Defending Party so elect to assume the defense of a Third Party Claim, then the Indemnifying Defending Party shall not be entitled liable to assume and control the Claiming Party for legal expenses subsequently incurred by the Claiming Party in connection with the defense thereof unless (i) the employment of separate counsel shall have been authorized in writing by the Defending Party in connection with the defense of such Third Party Claim at its expense and through or (ii) the Claiming Party’s counsel of its choice if it gives notice of its intention to do so shall have advised the Claiming Party in writing, with a copy delivered to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Defending Party; provided , that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate under applicable standards of professional conduct to have common counsel. If the Defending Party assumes such defense, the Claiming Party shall have the right to participate in the judgment of the Indemnified Party in its sole defense thereof and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is requiredemploy counsel, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Defending Party’s expense, all witnessesseparate from the counsel employed by the Defending Party, pertinent recordsit being understood, materials and information however, that the Defending Party shall control such defense (including any settlement with respect thereto); provided, however, that the Defending Party shall obtain the prior written consent of the Claiming Party (which shall not be unreasonably withheld, conditioned or delayed) before entering into any settlement, compromise, admission or acknowledgement of the validity of the Third Party Claim if such resolution would involve anything other than the payment of monetary damages in an amount not exceeding the amount then remaining in the Indemnified Party’s possession Indemnity Escrow Account and the Special Escrow Account as to which no Outstanding Escrow Claims are pending or under if such resolution does not include an unconditional provision whereby the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, plaintiff or claimant in the event matter releases the Indemnified Claiming Party isand all of its Affiliates and representatives from all liability with respect thereto. If the Defending Party chooses to defend any Third Party Claim, directly or indirectly, conducting then all the parties hereto shall cooperate in the defense against any or prosecution of such Third Party Claim, including by retaining and (upon the Indemnifying Defending Party’s request) providing to the Defending Party shall cooperate all records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any materials provided hereunder; provided, that such cooperation will not unduly disrupt the operations of the business of such Claiming Party or any of its Affiliates or cause such Claiming Party to waive any statutory or common law privileges, breach any confidentiality obligations owed to third parties or otherwise cause any confidential information of such Claiming Party or any of its Affiliates to become public. For the avoidance of doubt, if Sellers assume the defense of a Third Party Claim pursuant to this Section 9.05 as the Defending Party, all costs and expenses incurred by Sellers in connection with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No of such Third Party Claim may shall be settled borne by Sellers and shall not be reimbursed from the Indemnifying Indemnity Escrow Account and the Special Escrow Account. Whether or not Sellers shall have assumed the defense of a Third Party Claim as the Defending Party, neither Buyer nor any of its Affiliates shall admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim without the prior written consent of Sellers (which shall not be unreasonably withheld, conditioned or delayed), except with respect to any Third Party Claim (i) that seeks the Indemnified issuance of an injunction, the specific election of an obligation or similar remedy, (ii) that seeks damages in excess of the amount then remaining in the Indemnity Escrow Account and the Special Escrow Account as to which no Outstanding Escrow Claims are pending, or (iii) the subject matter of which relates to the ongoing business of the Claiming Party or any of its Affiliates, which Third Party Claim, if decided against such Claiming Party, would materially affect the ongoing business or reputation of such Claiming Party or any of its Affiliates, which Third Party Claims the Claiming Party will be entitled to settle in its sole discretion.
(c) In any case in which a Buyer Indemnitee or Seller Indemnitee seeks indemnification under this Agreement not arising out of a Third Party Claim, the Buyer Indemnitee shall notify the Sellers’ Representative (or, in the case of a Seller Indemnitee, the Sellers’ Representative shall notify the Buyer) reasonably promptly in writing of any Losses that such Buyer Indemnitee or Seller Indemnitee (as applicable) claims are subject to indemnification under the terms of this Agreement. The notice shall describe the indemnification sought in reasonable detail to the extent known, and shall indicate the amount (estimated, if necessary, and if then estimable) of the Loss that has been or may be suffered. Subject to the limitations set forth in Section 9.02(c) and the provisions of this Section 9.05, the failure of such Buyer Indemnitee or Sellers’ Representative (as applicable) to exercise promptness in such notification shall not amount to a waiver of such claim unless and only to the extent that the resulting delay actually materially and adversely prejudices the position of the Sellers or the Buyer (as applicable) with respect to such claim.
Appears in 1 contract
Sources: Merger Agreement (Arcbest Corp /De/)
Procedures Relating to Indemnification. (a) Any party Promptly after receipt by a person seeking indemnification under pursuant to Section 6.01 6.1 or Section 6.2 of this Agreement (an “Indemnified Party”) shall promptly give the Party from whom of written notice of any investigation, claim, proceeding or other claim, action or suit in respect of which indemnification is being sought (an each, a “Claim”), the Indemnified Party promptly shall notify the party against whom indemnification pursuant to Section 6.1 or Section 6.2 of this Agreement is being sought (the “Indemnifying Party”) notice of any matter which such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Partycommencement thereof; PROVIDED, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises; provided HOWEVER, that the failure to provide give or delay in giving such notice notification shall not release affect the Indemnifying Party from any of its obligations under this Article VI indemnification provided hereunder except to the extent the Indemnifying Party is materially shall have been actually prejudiced by as a result of such failurefailure or delay. With respect to any recovery or indemnification sought by an Indemnified Party from the Indemnifying Party that does not involve a Third Party ClaimThereafter, if the Indemnifying Party does not notify the Indemnified Party within thirty shall deliver to the Indemnifying Party, as soon as practicable following the Indemnified Party’s receipt thereof, copies of all notices and documents (30including court papers) days from its receipt of the notice from received by the Indemnified Party that relating to the Claim. In providing notice to the Indemnifying Party, the Indemnified Party disputes such claim, acknowledges its responsibility to provide said notice as promptly as possible in order that the Indemnifying Party shall be deemed able to have accepted engage counsel and agreed with such claimto submit appropriate answers to any Claim within the time period required by law.
(b) If a Claim is made against an Indemnified Party shall receive notice of any claim or demand asserted by a third party (eachParty, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such notice, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided that shall assume the failure to provide such notice shall not release defense thereof with counsel selected by the Indemnifying Party from any of its obligations under this Article VI except and reasonably acceptable to the extent Indemnified Party. The Indemnified Party may participate in the defense of such Claim; PROVIDED, HOWEVER, that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then the Indemnifying Party shall will not be entitled to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so liable to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of for legal expenses incurred by the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any connection with such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available subsequent to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required assumption thereof by the Indemnifying Party. Similarly, in The Indemnifying Party shall be liable for the event fees and expenses of counsel employed by the Indemnified Party is, directly or indirectly, conducting the defense against for any such Third Party Claim, period during which the Indemnifying Party has not assumed the defense thereof. All of the parties hereto shall cooperate with in the Indemnified Party in such defense or prosecution of any Claim. Such cooperation shall include retaining and make available to the Indemnified Party, at (upon the Indemnifying Party’s expense, all such witnesses, records, materials written request) providing to the Indemnifying Party records and information in which are reasonably relevant to such Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, such Claim without the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified Partyconsent.
Appears in 1 contract
Sources: Asset Purchase Agreement (Performance Sports Brands, Inc.)
Procedures Relating to Indemnification. (a) Any A party (the "indemnified party") seeking indemnification under Section 6.01 (an “Indemnified Party”) shall promptly give the Party from whom indemnification is being sought (an “Indemnifying Party”) notice of any matter which such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Merger Agreement in respect of, arising out of which such right or involving a claim or demand made by any Person against the indemnified party (a "Third Party Claim") shall notify the indemnifying party in writing of indemnification is claimed or arisesthe Third Party Claim within 20 days after receipt by the indemnified party of written notice of the Third Party Claim; provided provided, however, that the failure to provide give such notice notification shall not release affect the Indemnifying Party from any of its obligations indemnification provided under this Article VI Merger Agreement, except to the extent the Indemnifying Party is materially indemnifying party shall actually have been prejudiced by such the failure. With respect Thereafter, the indemnified party shall deliver to any recovery or indemnification sought the indemnifying party, promptly after the indemnified party's receipt thereof, copies of all notices and documents (including court papers) received by an Indemnified Party from the Indemnifying Party that does not involve a indemnified party relating to the Third Party Claim, if the Indemnifying Party does not notify the Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
(b) If an Indemnified Party The indemnifying party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VIhave the right, within thirty (30) 30 days of the receipt of such noticeafter being so notified, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then the Indemnifying Party shall be entitled to assume and control the defense of such Third Party Claim at its expense and through with counsel of its choice if it gives notice of its intention to do so reasonably satisfactory to the Indemnified Party within fifteen (15) days indemnified party. In any such proceeding, the defense of which the receipt of such notice from indemnifying party shall have so assumed, the Indemnified Party; provided that that if there exists or is reasonably likely indemnified party shall have the right to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole participate therein and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for at its own expense unless (i) the indemnified party and the indemnifying party shall have mutually agreed to the retention of such counsel, (ii) the indemnified party shall have received a written opinion of counsel to the effect that there may be one or more legal defenses available to it which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right are different from or additional to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make those available to the Indemnifying Partyindemnifying party (iii) the named parties to any such proceeding (including the impleaded parties) include both the indemnifying party and the indemnified party, and representation of both parties by the same counsel would be inappropriate in the opinion of the indemnified party's counsel due to actual or potential differing interests between them; in any such case, such separate counsel may be retained by the indemnified party at the Indemnifying Party’s expense, all witnesses, pertinent records, materials indemnifying party's expense (provided that the indemnifying party shall not be required to bear the fees and information in expenses of more than one such counsel). To the Indemnified Party’s possession or under extent that the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any settlement of such a Third Party Claim, the Indemnifying Party defense of which has been assumed by the indemnifying party, involves the payment of money only, the indemnifying party shall cooperate have the right, in consultation with the Indemnified Party in indemnified party, to settle those aspects dealing only with the payment of money, provided that the indemnifying party pays such money. In connection with any such defense and make available or settlement, the indemnifying party shall not enter into a consent decree involving injunctive or non-monetary relief or consent to an injunction without the Indemnified Partyindemnified party's prior written consent. If the indemnifying party shall have assumed the defense of a Third Party Claim, at the Indemnifying Party’s expenseindemnified party shall not, all without first waiving the indemnity as to such witnessesclaim, recordsadmit any liability with respect to, materials and information in or settle, compromise or discharge, the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the indemnifying party's prior written consent consent.
(c) With respect to all Third Party Claims, the indemnified party shall cooperate in all reasonable respects with the indemnifying party in connection with such claims and the defense or compromise of the Indemnified Partyclaims. Such cooperation shall include the retention and (upon the indemnifying party's request) the provision to the indemnifying party of records and information reasonably relevant to the Third Party Claim, making employees available on a mutually convenient basis to provide additional information and explanation of any material provided under this Merger Agreement.
Appears in 1 contract
Procedures Relating to Indemnification. (a) Any If an indemnified party seeking shall desire to assert any claim for indemnification under Section 6.01 (an “Indemnified Party”) shall promptly give the Party from whom indemnification is being sought (an “Indemnifying Party”) notice of any matter which such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification provided for under this Agreement stating ARTICLE VIII in respect of, arising out of or involving a claim or demand made by any Person (other than a party hereto or Affiliate thereof) against the indemnified party (a “Third-Party Claim”), such indemnified party shall notify the indemnifying party in writing, and in reasonable detail (taking into account the factual basis information then available to such indemnified party), of the claim Third-Party Claim promptly after receipt by such indemnified party of written notice of the Third-Party Claim; provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent known the indemnifying party shall have been actually prejudiced as a result of such failure. The indemnified party shall deliver to the indemnifying party, promptly after the indemnified party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Partyindemnified party relating to the Third-Party Claim; provided, however, that the failure to deliver such copies 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.
(b) If a Third-Party Claim is made against an indemnified party, the indemnifying party will be entitled to participate in the defense thereof and, if it so chooses and acknowledges without reservation its obligation to indemnify the indemnified party therefore, to assume the defense thereof with counsel selected by the indemnifying party and reasonably satisfactory to the indemnified 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 indemnified party for legal expenses subsequently incurred by the indemnified party in connection with the defense thereof, unless the Third-Party Claim involves potential conflicts of interest or substantially different defenses for the indemnified party and the indemnifying party. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in defense thereof and to employ counsel, at its own expense (except as provided in the immediately preceding sentence), 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 indemnified party for any period during which the indemnifying party has not assumed the defense thereof and as otherwise contemplated by the two immediately preceding sentences. If the indemnifying party chooses to defend any Third-Party Claim, all the parties hereto shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the indemnifying party’s request) the provision to the indemnifying party of records and information that are reasonably relevant to such Third-Party Claim, and containing use reasonable efforts to make employees available on a reference mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the provisions indemnifying party shall have assumed the defense of this Agreement a Third-Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge, such Third-Party Claim without the indemnifying party’s prior written consent (which consent shall not be unreasonably withheld). The indemnifying party may pay, settle or compromise a Third-Party Claim with the written consent of the indemnified party, so long as such settlement includes (A) an unconditional release of the indemnified party from all liability in respect of which such right Third-Party Claim, (B) does not subject the indemnified party to any injunctive relief or other equitable remedy and (C) does not include a statement or admission of fault, culpability or failure to act by or on behalf of any indemnified party.
(c) If an indemnified party shall desire to assert any claim for indemnification is claimed provided for under this ARTICLE VIII other than a claim in respect of, arising out of or arisesinvolving a Third-Party Claim, such indemnified party shall notify the indemnifying party in writing, and in reasonable detail (taking into account the information then available to such indemnified party), of such claim promptly after becoming aware of the existence of such claim; provided that the failure to provide give such notice notification shall not release affect the Indemnifying Party from any of its obligations under this Article VI indemnification provided for hereunder except to the extent the Indemnifying Party is materially indemnifying party shall have been actually prejudiced by such failure. With respect to any recovery or indemnification sought by an Indemnified Party from the Indemnifying Party that does not involve as a Third Party Claim, if the Indemnifying Party does not notify the Indemnified Party within thirty (30) days from its receipt result of the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
(b) If an Indemnified Party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such notice, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party acknowledges in writing indemnifying party does not respond to such notice within 45 days after its obligation receipt, it will have no further right to indemnify contest the Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then the Indemnifying Party shall be entitled to assume and control the defense validity of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified Partyclaim.
Appears in 1 contract
Sources: Partnership Interest Purchase Agreement (Payless Shoesource Inc /De/)
Procedures Relating to Indemnification. (a) Any The Trustee shall give notice to the indemnifying party seeking indemnification under Section 6.01 (an “Indemnified Party”) shall promptly give the Party from whom indemnification is being sought (an “Indemnifying Party”) notice in writing, and in reasonable detail, of any matter which such Indemnified Party has determined has given claim or would reasonably be expected to give rise to demand made by any person, firm, governmental authority or corporation against the Trustee (a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent the Indemnifying Party is materially prejudiced by such failure. With respect to any recovery or indemnification sought by an Indemnified Party from the Indemnifying Party that does not involve a "Third Party Claim") for which the Trustee seeks indemnity pursuant to Section 12.1(a) or (b) hereof, if the Indemnifying Party does not notify the Indemnified Party within thirty (30) days from its promptly after receipt by such Trustee of written notice of the notice from Third Party Claim; provided, however, that failure to give such notification shall not affect the Indemnified Party that the Indemnifying Party disputes such claimindemnification provided hereunder. Thereafter, the Indemnifying Trustee shall deliver to the indemnifying party promptly after the Trustee's receipt thereof, copies of all notices and documents (including court papers) received by the Trustee relating to the Third Party shall be deemed to have accepted and agreed with such claimClaim.
(b) If an Indemnified Party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party Claim”) Claim is made against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such noticeTrustee, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then the Indemnifying Party shall indemnifying party will be entitled to participate in the defense thereof and, if it so chooses, to assume the defense thereof with counsel selected by the indemnifying party and control reasonably satisfactory to the Trustee. Should the indemnifying party so elect to assume the defense of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate indemnifying party will not be liable to the Trustee for legal expenses subsequently incurred by the Trustee in connection with the Indemnified Party defense thereof. If the indemnifying party assumes such defense, the Trustee shall have the right to participate in such the defense thereof and make available to the Indemnified Partyemploy counsel, at its own expense (and not at the Indemnifying Party’s expenseexpense of the Trust), all such witnesses, records, materials and information in separate from the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required counsel employed by the Indemnified Partyindemnifying party, it being understood that the indemnifying party shall control such defense. No such Third Party Claim may The indemnifying party shall be settled liable for the fees and expenses of counsel employed by the Indemnifying Party without Trustee for any period during which the prior written consent of indemnifying party has not assumed the Indemnified Party.defense thereof
Appears in 1 contract
Procedures Relating to Indemnification. (a) Any party seeking If an Indemnified Party shall desire to assert any claim for indemnification provided for under Section 6.01 this Article VIII in respect of, arising out of or involving a claim or demand made by any Person (an “other than a Party hereto or Affiliate thereof) against the Indemnified Party
(a “ Third-Party Claim”) shall promptly give the Party from whom indemnification is being sought (an “Indemnifying Party”) notice of any matter which ), such Indemnified Party has determined has given shall notify the Representatives or would reasonably be expected to give rise to a right of indemnification under this Agreement stating LTFS, as applicable in writing (in reasonable detail taking into account the factual basis information then available to such Indemnified Party) of the claim to Third-Party Claim promptly after receipt by such Indemnified Party of written notice of the extent known by Third-Party Claim; provided, however, that, so long as such notification is given within the Indemnified Partyapplicable time limit set forth in Sections 8.1(a) and 8.1(b), and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises; provided that the failure to provide give such notice notification shall not release affect the Indemnifying Party from any of its obligations under this Article VI indemnification provided hereunder except to the extent the Indemnifying Party is materially indemnifying party or parties shall have been actually prejudiced by as a result of such failure. With respect to any recovery or indemnification sought by an The Indemnified Party from shall deliver to the Indemnifying Party that does not involve a Third Party ClaimRepresentatives or LTFS, if as applicable, promptly after the Indemnifying Party does not notify Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party within thirty (30) days from its relating to the Third-Party Claim; provided, however, that the failure to deliver such copies 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 Representatives shall promptly notify all applicable indemnifying parties of any such claim upon Representatives’ receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claimof same as prescribed hereby.
(b) If a Third-Party Claim is made against an Indemnified Party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party Claim”) against it or which may give rise to a claim for Loss under this Article VI, within thirty (30) days of the receipt of such noticeParty, the Indemnified Party shall give indemnifying party will be entitled to participate in the Indemnifying Party notice of such Third Party Claim; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party defense thereof and, if it so chooses and acknowledges in writing without reservation its obligation to indemnify the Indemnified Party hereunder against any Losses that therefor, it may result from such Third assume the defense thereof with counsel selected by the indemnifying party and reasonably satisfactory to the Indemnified Party. Should the indemnifying party so elect to assume the defense of a Third-Party Claim, then the Indemnifying Party shall indemnifying party will not be entitled to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so liable to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of for legal expenses subsequently incurred by the Indemnified Party in its sole and absolute discretion connection with the defense thereof, unless the Third-Party Claim involves potential conflicts of interest or substantially different defenses for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then indemnifying party. If the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that the Indemnifying Party exercises the right to undertake any indemnifying party assumes such defense against any such Third Party Claim as provided abovedefense, the Indemnified Party shall cooperate with have the Indemnifying Party right to participate in such defense thereof and make available to the Indemnifying Partyemploy counsel, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information its own expense (except as provided in the Indemnified Party’s possession or under immediately preceding sentence), separate from the Indemnified Party’s control relating thereto as is reasonably required counsel employed by the Indemnifying Partyindemnifying party, it being understood that the indemnifying party shall control such defense. Similarly, in The indemnifying party shall be liable for the event fees and expenses of counsel employed by the Indemnified Party is, directly or indirectly, conducting for any period during which the indemnifying party has not assumed the defense against thereof and as otherwise contemplated by the two immediately preceding sentences. If the indemnifying party chooses to defend any Third-Party Claim, all the Parties shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the indemnifying party’s request) the provision to the indemnifying party of records and information that are reasonably relevant to such Third Third-Party Claim, and use reasonable efforts to make employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party shall have assumed the defense of a Third-Party Claim, the Indemnifying Indemnified Party shall cooperate not admit any liability with respect to, or settle, compromise or discharge, such Third-Party Claim without the indemnifying party’s prior written consent (which consent shall not be unreasonably withheld or delayed). The indemnifying party may pay, settle or compromise a Third-Party Claim with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified Party, so long as such settlement includes (i) an unconditional release of the Indemnified Party from all Liabilities in respect of such Third-Party Claim, (ii) does not subject the Indemnified Party to any injunctive relief or other equitable remedy and (iii) does not include a statement or admission of fault, culpability or failure to act by or on behalf of any Indemnified Party.
(c) If an Indemnified Party shall desire to assert any claim for indemnification provided for under this ARTICLE VIII other than a claim in respect of, arising out of or involving a Third-Party Claim, such Indemnified Party shall notify the Representatives or LTFS, as applicable, in writing making specific reference to this Section 8.4(c) of this Agreement, and in reasonable detail (taking into account the information then available to such Indemnified Party), of such claim promptly after becoming aware of the existence of such claim; provided, however, that so long as notification is given within the applicable time limit set forth in Sections 8.1(a) and 8.1(b), the failure to give such notification shall not affect the indemnification provided for hereunder except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure. If the indemnifying party does not respond to such notice within thirty (30) days after its receipt, it will have no further right to contest the validity of such claim. The Representatives or LTFS, as applicable, shall promptly notify all applicable indemnifying parties of any such claim upon Representatives’ or LTFS’s, as applicable, receipt of notice of same as prescribed hereby.
Appears in 1 contract
Sources: Stock Purchase Agreement (Ladenburg Thalmann Financial Services Inc)
Procedures Relating to Indemnification. (a) Any In order for any indemnified party seeking indemnification under Section 6.01 (an “Indemnified Party”) shall promptly give the Party from whom specified in Section 6.1 or 6.2, as applicable, to be entitled to any indemnification is being sought (an “Indemnifying Party”) notice provided for under Section 6.1 or 6.2, respectively, arising out of any matter which such Indemnified Party has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement stating in reasonable detail the factual basis of the claim to the extent known by the Indemnified Party, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises; provided that the failure to provide such notice shall not release the Indemnifying Party resulting from any claim made by any Person other than the parties hereto or any of its obligations under this Article VI except to the extent the Indemnifying Party is materially prejudiced by such failure. With respect to any recovery or indemnification sought by an Indemnified Party from the Indemnifying Party that does not involve a Third Party Claim, if the Indemnifying Party does not notify their Affiliates against the Indemnified Party within thirty (30) days from its receipt of the notice from the Indemnified Party that the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim.
(b) If an Indemnified Party shall receive notice of any claim or demand asserted by a third party (each, a “Third Party Claim”), such Indemnified Party must notify the indemnifying party (the “Indemnifying Party”) against it or which may give rise to a claim for Loss under this Article VIin writing, within thirty (30) days and in reasonable detail, of the Third Party Claim promptly after receipt by such Indemnified Party of written notice of the Third Party Claim; provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been materially and actually prejudiced as a result of such noticefailure. Thereafter, the Indemnified Party shall give 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) received by the Indemnified Party relating to the Third Party Claim.
(b) If a Third Party Claim is made against an Indemnified Party, the Indemnifying Party notice of such Third Party Claim; provided that shall be entitled to participate in the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party defense thereof and, if it so chooses and acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claimtherefor, then to assume the defense thereof with counsel selected by the Indemnifying Party shall be entitled to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party; provided that that if there exists or such counsel is not reasonably likely objected to exist a conflict of interest that would make it inappropriate in the judgment of by the Indemnified Party in its sole and absolute discretion for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the Indemnifying Party’s expense. In the event that Should the Indemnifying Party exercises the right so elect to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting assume the defense against any such of a Third Party Claim, the Indemnifying Party shall cooperate with not be liable to the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof (except in the case of a conflict of interest, as described below). If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense (except that if, in the reasonable judgment of an Indemnified Party, a conflict of interest exists between the Indemnifying Party and make available to the Indemnified Party, at the Indemnified Party may employ its own counsel, separate from the counsel employed by the Indemnifying Party, and may control its defense to the extent deemed necessary by the Indemnified Party). The Indemnifying Party shall be liable, in respect of any Third Party Claim, for the fees and expenses of one counsel for all the Indemnified Parties for any period during which the Indemnifying Party is not assuming the defense thereof or during a conflict of interest (as described above).
(c) If the Indemnifying Party so elects to assume the defense of any Third Party Claim, all of the Indemnified Parties shall cooperate with the Indemnifying Party in the defense or prosecution thereof. In any event, the Indemnified Party and its counsel shall cooperate with the Indemnifying Party and its counsel and, except to the extent related to any conflict of interest, shall not assert any position in any proceeding inconsistent with that asserted by the Indemnifying Party; provided, however, that the foregoing shall not prevent the Indemnified Party from taking the position that it is entitled to indemnification hereunder. All out-of-pocket costs and expenses incurred in connection with an Indemnified Party’s cooperation shall be borne by the Indemnifying Party. Such cooperation shall include the retention and (upon the Indemnifying Party’s expense, all such witnesses, records, materials request) the provision to the Indemnifying Party of records and information in which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the Indemnifying Party shall have assumed the defense of a Third Party Claim, the Indemnified Party shall not be entitled to any indemnification hereunder with respect to any admission of any liability or any settlement, compromise or discharge of any Third Party Claim effected without the Indemnifying Party’s possession or under prior written consent (which consent shall not be unreasonably withheld). If the Indemnifying Party’s control relating thereto as is reasonably required Party shall have assumed the defense of a Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim which: (i) the Indemnifying Party may recommend; (ii) by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim; (iii) releases the Indemnified Party completely from and in connection with such Third Party Claim; and (iv) would not otherwise adversely affect the Indemnified Party or require any relief other than monetary damages.
(d) Notwithstanding the foregoing, the Indemnifying Party 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 Indemnified Party 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 Indemnified Party. No such The indemnification required by Sections 6.1 and 6.2 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or Losses are incurred. All claims under Sections 6.1 and 6.2 that are Third Party Claim may Claims shall be settled governed by the Indemnifying Party Section 6.3.
(e) The indemnification provisions of this ARTICLE VI (i) shall apply without the prior written consent regard to, and shall not be subject to, any limitation by reason of set-off, limitation or otherwise and (ii) are intended to be comprehensive and not to be limited by any Requirements of Law concerning prominence of language or waiver of any legal right under any law. The obligations of the Indemnified Partyparties set forth in this ARTICLE VI shall be conditioned upon the Closing having occurred.
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Sources: Stock Purchase Agreement (Live Nation Entertainment, Inc.)